18VAC120-30 Regulations Governing Polygraph Examiners

REGULATIONS

Vol. 30 Iss. 6 - November 18, 2013

TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION

Chapter 30

Final Regulation

Title of Regulation: 18VAC120-30. Regulations Governing Polygraph Examiners (amending 18VAC120-30-30, 18VAC120-30-40, 18VAC120-30-70, 18VAC120-30-100, 18VAC120-30-110, 18VAC120-30-160, 18VAC120-30-170, 18VAC120-30-180, 18VAC120-30-200, 18VAC120-30-220, 18VAC120-30-230, 18VAC120-30-240, 18VAC120-30-260, 18VAC120-30-270, 18VAC120-30-300).

Statutory Authority: § 54.1-1802.1 of the Code of Virginia.

Effective Date: January 1, 2014.

Agency Contact: Eric L. Olson, Executive Director, Department of Professional and Occupational Regulation, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone [phone], FAX [phone], or email [e-mail].

Summary:

The amendments (i) allow an applicant to take portions of the examination at different dates within a one-year period, (ii) clarify renewal and reinstatement requirements, and (iii) provide for a procedure to be used in the event that an examiner supervising an intern is unable to provide verification of experience.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

18VAC120-30-30. Advisory board.

A. The Polygraph Examiners Advisory Board, consisting of [ eight seven ] members appointed by the director, shall exercise the authority delegated by the director consistent with § 2.2-2100 A of the Code of Virginia and advise the department on any matters relating to the practice of polygraphy and the licensure of polygraph examiners in the Commonwealth of Virginia.

B. The advisory board shall be composed of three Virginia licensed polygraph examiners employed by law enforcement agencies of the Commonwealth, or any of its political subdivisions; three Virginia licensed polygraph examiners employed in private industry; and two citizen members as defined in §§ 54.1-107 and 54.1-200 of the Code of Virginia. All members must be residents of the Commonwealth of Virginia.

C. Each member shall serve a four-year term. No member shall serve more than two consecutive four-year terms.

Part II
Entry Requirements

18VAC120-30-40. Basic qualifications for licensure and registration.

A. Every applicant to the board for a license shall provide information on his application establishing that:

1. The applicant is at least 18 years old.

2. The applicant is in good standing as a licensed polygraph examiner in every jurisdiction where licensed. The applicant must disclose if he has had a license as a polygraph examiner which was suspended, revoked, or surrendered in connection with a disciplinary action or which has been the subject of discipline in any jurisdiction prior to applying for licensure in Virginia. At the time of application for licensure, the applicant must also disclose any disciplinary action taken in another jurisdiction in connection with the applicant's practice as a polygraph examiner and whether he has been previously licensed in Virginia as a polygraph examiner.

3. The applicant is fit and suited to engage in the profession of polygraphy. The applicant must disclose if he has been convicted in any jurisdiction of a felony or misdemeanor involving lying, cheating, stealing, sexual offense, drug distribution, physical injury, or relating to the practice of the profession. Any plea of nolo contendere shall be considered a conviction for purposes of this subdivision. The record of a conviction authenticated in such form as to be admissible in the evidence under the laws of the jurisdiction where convicted shall be admissible as prima facie evidence of such conviction.

4. The applicant has disclosed his physical address. A post office box is not acceptable.

5. The nonresident applicant for a license has filed and maintained with the department an irrevocable consent for the department to serve as a service agent for all actions filed in any court in this Commonwealth.

6. The applicant has signed, as part of the application, a statement certifying that he has read and understands the Virginia polygraph examiner's license law and regulations.

7. The applicant has submitted an application, provided by the department, which shall include criminal history record information from the Central Criminal Records Exchange, with a report date within 30 days of the date the application is received by the department.

B. The department may (i) make further inquiries and investigations with respect to the qualifications of the applicant, (ii) require a personal interview with the applicant, (iii) or both.

C. The applicant shall pass all parts of the polygraph examiners licensing examination approved by the department at a single administration within one year from examination approval in order to be eligible for a polygraph examiners license.

18VAC120-30-70. Procedures for licensed polygraph examiners to certify the procedures to be used to supervise an intern during an internship.

A. Each licensee supervising an intern shall file with the application of the intern a description of the following:

1. The frequency and duration of contact between the licensee and the intern; and

2. The procedures to be employed by the licensee in reviewing and evaluating the intern's performance; and

3. The polygraph technique(s) to be used.

B. The licensee supervising the intern shall review the intern's charts prior to the intern rendering of any an opinion or conclusion on any polygraph examination administered by the intern.

C. In the event the licensed supervisor is unable to continue [ , ] any review of experience shall be at the discretion of the board.

18VAC120-30-100. Fees.

A. All application fees for licenses and registrations are nonrefundable and shall not be prorated. The date of receipt by the department is the date that will be used to determine whether or not the fee is on time.

B. Application and examination fees must be submitted with the application for licensure. All other fees are discussed in greater detail in later sections of this chapter.

C. In the event that a check, money draft, or similar instrument for payment of a fee required by statute or regulation is not honored by the bank or financial institution named, the applicant or regulant shall be required to remit fees sufficient to cover the original fee, plus an additional processing charge set by the department.

D. The following fees listed in the table apply:

FEE TYPE	AMOUNT DUE	WHEN DUE
Application for Examiner's License	$45	With application
Application for Examiner's License by Reciprocity	$95	With application
Application for Intern Registration	$75	With application
Application for Examiner's License by Examination	$200	With application
Reexamination	$200	With approval letter
Renewal	$55	Up to one calendar month after the expiration date on license
Reinstatement	$75	One to six calendar months after the expiration date on license
Duplicate Wall Certificate	$25	With written request
Certificate of Licensure	$25	With written request

18VAC120-30-110. Examinations.

All examinations required for licensure shall be approved by the advisory board and provided by the department, a testing service acting on behalf of the advisory board, or another governmental agency or organization.

Applicants for licensure shall pass a two-part licensing examination approved by the board, of which Part I is a written examination and Part II is an Advisory Board Evaluation. Applicants must pass the written examination in order to sit for the advisory board evaluation being administered the same day.

The applicant shall follow all the rules established by the department with regard to conduct at the examination. Such rules shall include any written instructions communicated prior to the examination date and any instructions communicated at the site, either written or oral, on the date of the examination. Failure to comply with all rules established by the department with regard to conduct at the examination shall be grounds for denial of application.

18VAC120-30-160. Qualifications for renewal.

A. Applicants for renewal of a license shall continue to meet the standards for entry as set forth in subdivisions A 2 through A 5 of 18VAC120-30-40. The board may deny renewal of a license for the same reasons as it may refuse initial issuance or discipline a regulant. The regulant has a right to appeal any such action by the board under the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

B. Failure to timely pay any monetary penalty, reimbursement of cost, or other fee assessed by consent order or final order shall result in delaying or withholding services provided by the department, such as, but not limited to, renewal, reinstatement, or processing of a new application; or exam administration.

Part IV
Reinstatement

18VAC120-30-170. Reinstatement required.

A. Any licensee who fails to renew his license within one calendar month after the expiration date on the license shall be required to apply for reinstatement and submit the proper fee referenced in 18VAC120-30-100.

B. Six calendar months after the expiration date on the license, reinstatement is no longer possible. To resume practice as a polygraph examiner, the former licensee must apply as a new applicant for licensure, meeting all educational, examination and experience requirements as listed in the regulations then current entry requirements at the time of reapplication, including retaking an examination.

C. Any examiner activity conducted subsequent to the expiration of the license may constitute unlicensed activity and may be subject to prosecution under § 54.1-111 of the Code of Virginia.

18VAC120-30-180. Department discretion to deny reinstatement.

The department may deny reinstatement of a license for the same reasons as it may refuse initial licensure or discipline a licensee.

Failure to timely pay any monetary penalty, reimbursement of cost, or other fee assessed by consent order or final order shall result in delaying or withholding the services provided by the department, such as, but not limited to, renewal, reinstatement, processing of a new application, or examination administration. The regulant has a right to appeal any such action by the board under the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

Part V
Standards of Practice and Conduct

18VAC120-30-200. Polygraph examination procedures.

A. Each licensed polygraph examiner and registered polygraph examiner intern must post, in a conspicuous place for the examinee, his license or registration, or a legible copy of his license or registration to practice in Virginia.

B. The examiner shall provide the examinee with a written explanation of the provisions of 18VAC120-30-200, 18VAC120-30-210 and 18VAC120-30-220 at the beginning of each polygraph examination.

C. The examinee may request a recording of the polygraph examination being administered. Each examiner shall maintain recording equipment and recording media adequate for such recording. The examiner shall safeguard all examination recordings with the records he is required to keep pursuant to 18VAC120-30-230. All recordings shall be made available to the department, the examinee or the examinee's attorney upon request. The examiner may charge the examinee a fee not to exceed $25 $35 only if the examinee requests and receives a copy of an examination tape recording.

D. The examinee shall be entitled to a copy of all portions of any written report pertaining to his examination which is prepared by the examiner and provided to any person or organization. The examinee shall make his request in writing to the examiner. The examiner shall comply within 10 business days of providing the written report to any person or organization or receiving the examinee's written request, whichever occurs later. The examiner may collect not more than $1.00 per page from the examinee for any copy provided.

E. The provisions of subsections B, C, and D of this section shall not be applicable to any examination conducted by or on behalf of the Commonwealth or any of its political subdivisions when the examination is for the purpose of preventing or detecting crime or the enforcement of penal laws. However, examiners administering examinations as described in this section shall comply with subsection B of this section through a verbal explanation of the provisions of 18VAC120-30-210 and 18VAC120-30-220.

18VAC120-30-220. Examination standards of practice.

A. The examiner shall comply with the following standards of practice and shall disclose to each examinee the provisions of this subsection and shall not proceed to examine or continue the examination if it is or becomes apparent to the examiner that the examinee does not understand any of these disclosures:

1. All questions to be asked during the polygraph test(s) shall be reduced to writing and read to the examinee.

2. The examinee or the examiner may terminate the examination at any time.

3. If the examination is within the scope of § 40.1-51.4:3 of the Code of Virginia, the examiner shall explain the provisions of that statute to the examinee.

4. No questions shall be asked concerning any examinee's lawful religious affiliations, lawful political affiliations, or lawful labor activities. This provision shall not apply to any such affiliation which is inconsistent with the oath of office for public law‑enforcement officers.

5. The examinee shall be provided the full name of the examiner and the name, address, and telephone number of the department.

6. During no part of a preemployment polygraph examination shall the examiner ask questions concerning an examinee's sexual preferences or sexual activities except as in accordance with § 40.1-51.4:3 or 54.1-1806 of the Code of Virginia.

B. An examiner shall not perform more than 12 polygraph examinations in any 24-hour period.

C. An examiner shall not ask more than 16 questions per chart on a single polygraph test. Nothing in this subsection shall prohibit an examiner from conducting more than one polygraph test during a polygraph examination.

D. An examiner shall allow on every polygraph test a minimum time interval of 10 seconds between the examinee's answer to a question and the start of the next question.

E. An examiner shall record at a minimum the following information on each polygraph test chart produced:

1. The name of the examinee;

2. The date of the examination;

3. The time that each test begins;

4. The examiner's initials;

5. Any adjustment made to component sensitivity;

6. The point at which each question begins and each answer is given;

7. Each question number; and

8. Each answer given by the examinee.

F. An examiner shall render only three evaluations of polygraph tests:

1. Deception indicated;

2. No deception indicated; or

3. Inconclusive.

An examiner may include in his report any information revealed by the examinee during the polygraph examination.

Nothing in this section shall prohibit an examiner from explaining the meaning of the above evaluations.

G. An examiner shall not render a verbal or written report based upon polygraph test chart analysis without having conducted at least two polygraph tests charts. Each relevant question shall have been asked at least once on each of at least two polygraph tests charts.

H. An examiner may make a hiring or retention recommendation for the examiner's full‑time employer provided the hiring or retention decision is not based solely on the results of the polygraph examination.

18VAC120-30-230. Records.

The licensed polygraph examiner or registered polygraph examiner intern shall maintain the following for at least one year from the date of each polygraph examination:

1. Polygraphic charts;

2. Questions asked during the examination;

3. A copy of the results and the conclusions drawn;

4. A copy of any every written report provided in connection with the examination; and

5. Tape Electronic recordings of examinations made in compliance with subsection C of 18VAC120-30-200.

18VAC120-30-240. Grounds for fines, denial, suspension or revocation of licenses or denial or withdrawal of school approval Prohibited acts.

The department may fine, deny, suspend, or revoke any license or registration, or deny or withdraw school approval upon a finding that the applicant, licensee, registrant, or school:

1. Has presented false or fraudulent information when applying for any license or registration, renewal of license or registration, or approval;

2. Has violated, aided, or abetted others to violate Chapters 1 through 3 of Title 54.1 or §§ 54.1-1800 through 54.1-1806 of the Code of Virginia, or of any other statute applicable to the practice of the profession herein regulated, or of any provisions of this chapter;

3. Has been convicted of any misdemeanor directly related to the occupation or any felony. [ Having Has ] been convicted or found guilty, regardless of the manner of adjudication, in any jurisdiction of the United States of any misdemeanor or felony. Review of convictions shall be subject to the requirements of § 54.1-204 of the Code of Virginia. Any pleas of nolo contendere shall be considered a conviction for the purposes of this section subsection. The record of a conviction authenticated in such form as to be admissible in evidence under the laws of the jurisdiction where the conviction occurred shall be forwarded to the board within 10 30 days of entry and shall be admissible as prima facie evidence of such conviction;

4. Has made any misrepresentation or false promise or caused to be published any advertisement that is false, deceptive, or misleading;

[ 4. Has made, in the course of soliciting for or advertising a business or service licensed under § 54.1-1802 of the Code of Virginia, a false, deceptive, or misleading statement orally, in writing, or in printed form; ]

[ 5. 4. ] Has allowed one's license or registration to be used by anyone else;

[ 6. 5. ] Has failed, within a reasonable period of time 21 days, to provide any records or other information requested or demanded by the department;

[ 7. 6. ] Has displayed professional incompetence or negligence in the performance of polygraphy; [ or ]

[ 8. 7. ] Has violated any provision of 18VAC120-30-220 [ .; ]

[ 8. Failure of the regulant, school's owner, or instructor 9. Has failed ] to maintain for a period of one year from the date of each administered polygraph examination a complete and legible copy of all documents relating to the polygraph examination including, but not limited to, examination questions, results, conclusions drawn, and written or electronic reports;

[ 9. Failure 10. Has failed ] to inform the board in writing within 30 days that the regulant, school's owner, or instructor has pleaded guilty or nolo contendere or was convicted and found guilty of any felony or of a Class 1 misdemeanor or any misdemeanor conviction for activities carried out while engaged in the practice of polygraphy [ .; ]

[ 10. Refusing or failing, 11. Has refused or failed, ] upon request, to produce to the board, or any of its agents, any document, book, or record, or copy of it in the regulant's or school's owner's possession concerning all records for which the regulant, school's owner, or instructor is required to maintain [ .; or ]

[ 11. Failing 12. Has failed ] to respond to an investigator or [ providing provides ] false, misleading, or incomplete information to an investigator seeking information in the investigation of a complaint filed with the board against the regulant, school's owner, or instructor.

Part VI
Approval of Polygraphy School

18VAC120-30-260. Approval of polygraph school curriculum.

Schools seeking approval of their polygraph curriculum shall submit the application for approval of a polygraph school to the department for consideration. The application shall include:

1. The name and address of the school;

2. The name and address of the proprietor, partnership, corporation or association if different from the school name;

3. The owners of the school;

4. The names and qualifications of the instructors which shall be indicated on instructor qualifications form; and in a format approved by the advisory board; [ and ]

5. The subject courses and the number of instruction hours assigned to each.

18VAC120-30-270. Minimum requirements for school curriculum.

A. There must be one type of accepted polygraph instrument per three students in the course.

B. To receive approval, the institution must offer a minimum of 240 hours of instruction, unless the school has obtained approval from the department for less than the minimum hours of course instruction. The following subject areas must be included in the school's curriculum:

1. Polygraph theory;

2. Examination techniques and question formulation;

3. Polygraph interrogation;

4. Case observation;

5. Polygraph case practice;

6. Chart interpretation;

7. Legal aspects of polygraph examination;

8. Physiological aspects of polygraphy;

9. Psychological aspects of polygraphy;

10. Instrumentation;

11. History of polygraph; and

12. Reviews and examinations [ .; and; ]

13. Ethics as it relates to polygraphy.

C. Out-of-state schools seeking approval of their curriculum which has been approved by their state must have the appropriate regulatory agency of their state certify such approval to the department.

18VAC120-30-300. Periodic requalification for continued course approval.

At times established by the department, or during the random audit of any course, the department may require that schools that have previously obtained course approval, provide the department with evidence, in a form set forth by the department, that they continue to comply with the requirements of 18VAC120-30-260, 18VAC120-30-270 and 18VAC120-30-280. Failure to continue to comply with the department's requirements or respond to such a request may result in the department withdrawing its approval.

NOTICE: The following forms used in administering the regulation were filed by the agency. The forms are not being published; however, online users of this issue of the Virginia Register of Regulations may click on the name to access a form. The forms are also available from the agency contact or may be viewed at the Office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia 23219.

FORMS (18VAC120-30)

Internship Completion and License Exam Form, 16EXINT (rev. 8/07).

License/Intern Registration Application, 16LIC (rev. 8/07).

Polygraph School Curriculum Approval Application, 16SCHL (rev. 11/02).

Supervisor Endorsement Form, 16SEND (rev. 11/02).

[ Internship Completion and License Exam Form, 16EXINT (rev. 9/12)

License/Intern Registration Application, 16LIC (rev. 9/12)

Polygraph School Curriculum Approval Application, 16SCHL (rev. 9/12)

Supervisor Endorsement Form, 16SEND (rev. 9/12)

Internship Completion and License Exam Form, A456-16EXINT-v5 (rev. 10/13)

License/Intern Registration Application, A456-16LIC-v3 (rev. 8/13)

Polygraph School Curriculum Approval Application, A456-16SCHL-v3 (rev. 8/13)

Supervisor Endorsement Form, A456-16SEND-v3 (rev. 8/13)

Commonwealth of Virginia Polygraph Examiners License Examination, A543-16CIB-v10 (eff. 10/13) ]

VA.R. Doc. No. R10-2217; Filed October 21, 2013, 1:49 p.m.