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How Improper Drug Testing Punishes Minority Moms and the Incarcerated

On Dec. 18, 2020, the day before she gave birth to her first child at a hospital in Middletown, N.Y., Crystal H. tested positive for opiates during the routine drug test administered to all pregnant women.

When the baby was born, hospital staff refused to allow her to nurse the infant. The positive result of the drug test made her an “unfit” mother, she was told..

But Crystal, a Latinx woman whose full name is withheld to protect her privacy, did not actually take the drug she tested positive for.

It was not the first time an erroneous drug test produced tragic consequences.

In 2019, 1,632 incarcerated individuals in New York State Corrections Facilities tested positive for buprenorphine, and were punished as a result—in what the state’s Inspector General at the time later called a “devastating” violation of due process.

The reasons for “positive” results can vary.

The testing methods can be faulty or the findings can be misinterpreted. In New York and elsewhere, some facilities use the lowest possible threshold cutoff amounts for drug positives, which can falsely label non-illicit drug substances as positive.

Many of those victimized by false positives are people of color..

According to a complaint filed Dec. 17, 2021 by the New York Civil Liberties Union (NYCLU) and National Advocates for Pregnant Women, Black and brown women have been disproportionately affected by improper drug tests.

The complaint cites the case of Crystal H., along with a second case filed under the name of an anonymous “Jane Doe.” Both were filed against Garnet Health Medical Center, the hospital in Middletown where the two expectant mothers were tested.

Premised on the argument that the testing demonstrates a pattern of discrimination against Black and Latinx pregnant New Yorkers, the complaint is part of the evidence being marshalled to support a proposed state bill to halt all drug testing of pregnant women without informed consent.

These tests are largely conducted at the discretion of health care providers, and accordingly [are] subject to their unconscious bias,” says a legislative memo in support of the bill.

The memo asserts that “drug and alcohol testing disproportionately targets Black and Latinx pregnant people in public hospitals, despite similar rates of substance use by white patients in private facilities.”

[Public hospitals in New York City ended the practice in November 2020.]

A National Issue

Most addiction specialists agree that, administered correctly, drug tests are essential for addiction treatment.

But, as these examples above reveal, some corrections facilities and welfare protection agencies judge a positive finding as black or white, positive or negative, and mete out punishment.

Numerous other court cases and studies across the country have come to a similar conclusion.

A 2020 study by the Illinois Criminal Justice Information Authority Center for Justice Research and Evaluation found that “probation departments operate with lack of guidance on drug testing, as well as a lack of research on drug testing’s impact on reducing recidivism or improving behavioral health.”

 “Drug testing is really only just one piece of information when working with a patient,” explained Dr. Timothy Wiegand, vice president of the board of directors of the American Society of Addiction Medicine (ASAM).

man with red tie

Dr. Timothy Wiegand

“Yet it is often treated as the most important piece of information. Positive go this way, negative, then that’s the path. This is very not the way drug testing should be utilized.”

Wiegand, a specialist in medical toxicology and addiction medicine, helped develop the 56-page ASAM guide, “Appropriate Use of Drug Testing in Clinical Addiction Medicine.”.

Drug testing is supposed to guide discussion and potential treatment, and shouldn’t be used to determine punitive measures, Dr. Wiegand said.

But, he added, the procedures are complicated by the fact that doctors may not always understand drug test results.

“Decisions are made all the time by individuals who haven’t had proper training or education in drug testing,” he said.

The Case of Crystal H.

 The details of Crystal’s case show how poor medical decision-making can lead to tragedy.

On Dec. 18, 2020, when medical staff at the Garnet Health Medical Center asked her for a urine sample shortly after her water started to leak, she assumed it was a routine test for protein levels and a check for blood in her urine.

Then the nurse told her she had tested positive for opiates. She had not been told it was a drug test. Nor did she give consent.

Crystal, and a second mother (the “Jane Doe” in the NYCLU complaint), who also underwent drug testing without consent by Garnet, received quick and cheap immunoassay scans.

The scans found Crystal had more than 300 ng/mL of codeine, the commonly used threshold cutoff for codeine on this “presumptive” screen.

However, presumptive screens have many limitations, including false positives due to cross-reactivity, according to Dr. Damon Borg, Chief Scientific Officer at Cordant Health Solutions.

Cordant, with more than 2,000 clients, is one of only 21 laboratories certified by the Department of Health and Human Services Substance Abuse and Mental Health Services Administration.

man with glasses

Dr. Damon Borg

“Confirmatory testing, by high accuracy and more expensive chromatography, is more definitive and can more accurately show the amount of the drug that is detected,” Dr. Borg, who is also an adjunct professor of forensic and clinical toxicology at the City University of New York, said in an interview with The Crime Report.

“And, the results of a confirmatory test are more likely to be legally defensible.”

But, despite measuring the exact amount, the confirmatory test can’t always reveal if the drug really was a drug. At least 119 medications and some foods can cause positives for the dozen most common classes of drugs.

The Poppy Seed Problem

Poppy seeds, for example, contain codeine and morphine which can produce a positive test.

Crystal remembered she had recently eaten a bagel with poppy seeds.

Hospital staff refused her requests for a confirmatory test, or for a test of her hair and blood. However, the obstetrician on duty did tell the nurse that poppy seeds can cause a false positive for codeine.

Despite that confirmation, Crystal felt mistreated by hospital staff during her stay.

“Garnet Health turned the joy of becoming a new mom into an absolute nightmare,” she was quoted as saying in the NYCLU complaint.

“Right after delivery, hospital staff didn’t permit me to nurse because of a false positive drug test. Those bonding moments with my newborn are moments I will never get back.”

Responding to Crystal’s concerns, a Garnet spokesperson wrote in an email statement on April 29, “Garnet Health appreciates our patients and their babies and it is our privilege to serve them We always strive to compassionately care for all patients.”

After a 60-day investigation by the Orange County (N.Y.) Department of Social Services, Crystal’s treatment, specifically her classification as “unfit,” was determined to be unfounded.

The record of her “positives” was expunged nine months later.

The Probationer

The problem of misleading test results is not confined to New York.

When the Sheriff’s Deputy walked into the Nicholas County Community Corrections Day Report center in the mountains of West Virginia on March 16, Bob Henry Baber freaked.

At the time, Baber, 71, a former mayor of Richwood, W.Va., had already served five months of a two-year probation sentence after being convicted of a fraud-related charge. Nearly every week, he had submitted to required drug testing; and nearly every week, he had seen a deputy handcuff and then lead a probationer off to the Central Regional Jail and Correctional Facility.

It was usually because the probationer had tested positive for drugs.

“This time,” he thought, “they are coming for me.”

Baber was worried because he had tested positive a week earlier for codeine. It was his third positive test—the first one occurred on Nov. 22—and he had been warned that a third positive test would lead to his arrest.

Baber did not use drugs. But he had eaten a lot of Everything Bagel Sabra Hummus with poppy seeds before the tests. When he tried to explain that to his probation officer, and even showed her a half-eaten container, she was still unimpressed.

Despite the positive third test, Baber was lucky. The center director, with whom Baber happened to share a doctor, had vouched for him.

 Otherwise, Baber would have been trapped by West Virginia’s use of the lowest possible threshold cutoffs for positive tests, even if he did not take drugs.

As he observed later, most of his fellow probationers at the Center had neither the resources nor the network connections to push back against the low threshold cutoffs, and false positives.

No National Standards

Usually, probationers have little legal recourse if they are the victims of improper drug testing.

Employee drug testing laws in some states, including West Virginia, require split sample urine testing, and allow a person who disputes test results to have the split sample retested. That doesn’t apply to offenders in the state.

In fact, there are no national standards for drug testing or cutoffs at corrections facilities.

State and local jurisdictions can ask labs for whatever threshold cutoff they think suits their drug addiction and crime problems.

These can be far lower than those the federal Department of Transportation uses for truck drivers. In fact, in 1998, in order to avoid poppy seed positives, federal workplaces set the 2000ng/mL level for opiates.

“It seems the industry is driving to lower and lower cutoffs,” said Dr. Borg. “That can be helpful if you really want to know about abstinence-based drug testing, where you want to detect any trace amount of the drug.

“But you need to be aware of the fact that you may start to detect things that are due to casual contact to substances in the environment.”

As a clinician, Dr. Wiegand is similarly concerned about punishment for very low cutoffs.

“Thresholds don’t tell us when the drug was used, where it came from, how much of the drug was used,” Dr. Wiegand explained.

“And it certainly won’t tell us if someone has impairment. It certainly won’t diagnose substance use disorder or addiction.”

Dr. Wiegand added that a low-level reading of drugs in the system can be the result of a variety of reasons, such as second-hand exposure—for instance from someone nearby smoking cannabis.

False positives can also be caused by the impact of certain types of exercise.

And fat-soluble drugs such as THC or fentanyl can be detected for prolonged periods after cessation of use. A person could have a negative test one day, but test positive a few days later after exercise broke down some fat and concentrated urine.

“These really low levels of detection can be really problematic,” Dr. Wiegand said. “They require a nuanced interpretation and understanding of a variety of individual factors.”

 The Incarcerated

The case of the 1,632 incarcerated individuals in New York State Corrections Facilities who tested positive for buprenorphine, and were punished as a result, has been singled out as a “devastating” example of due-process violation by New York Inspector General Lucy Lang.

“The fact that incarcerated New Yorkers were further deprived of their liberty without cause or due process is devastating,” she said in her report, which revealed findings of a pattern of extreme drug testing mistakes in New York prisons.

The testing, perhaps not coincidentally, was performed by one contractor.

In January 2019, the New York Department of Corrections and Community Supervision (DOCCS) had contracted for drug testing by Microgenics Corporation, a California-based subsidiary of Thermo Fisher Scientific.

Immediately after the testing began, reports of false positives spiked.

The crucial confirmatory tests were not done, according to Lang’s report. Testing staff members were not adequately trained. Microgenics did not disclose that one of the two versions of the test was known to cause false positives from common medicines and multivitamins.

During the eight-months that DOCCS used Microgenics testing, 3,018 people tested positive for drug use; 2,199 of these individuals were positive for buprenorphine.

Of those 2,199, DOCCS charged and punished 1,632 people. Some 1,280 were placed in solitary confinement and the remaining 352 received other forms of punishment, including loss of privileges, loss of good time, and delays in parole eligibility.

On Nov. 5, 2019, the Inspector General recommended DOCCS immediately stop taking adverse actions based on test results. DOCCs released those wrongly punished and expunged their records.

 From Punishment to Treatment

This and other investigations have pointed the way to the need for critical changes in the relationship between addiction treatment providers and the corrections “industry,” as Cynthia Whiteman, Scientific and Operations Development Director at Cordant Health Solutions, puts it.

“About 17 years ago, when people thought about drug testing, probation and parole, it was talked about in a very different way,” said Whiteman, who works with Cordant corrections clients, including child protective services, probation, parole and rehabilitation.

smiling woman

Cynthia Whiteman

“What I’ve seen in this industry is a transition in how we talk about treatment and how we talk about addiction.

“One thing we are proud of here, is seeing the transition of clients that are sent to treatment facilities as part of their mandated program goal so they can be specifically treated.

“It’s a significant transition away from probation parole drug testing of the past, where a positive confirmed drug test meant immediate incarcerations for a drug addiction. It’s, really been, for me, a wonderful change to see people working together.

“We don’t call them offenders. We call them clients, we call them participants, (that’s) a little bit of my soapbox. Having that therapeutic relationship is so much more of an impact on a success story for individuals going through these programs.”

Whiteman pointed to the fact that her company’s training tools, webinars, briefs on myths and facts , and detection guides were available publicly to patients as well as doctors.

“Understanding what you are looking at is critical,” she said. “I go back to the change in the industry, it’s all about ‘let’s look at your treatment goals. Let’s have a conversation, what’s going in your life, what’s going on with your kids?’

“A drug test is a piece of the larger puzzle. It is a piece of information, but a lot more things should go into treatment decisions or decisions that affect the client.”

A Model West Virginia Program

A four-and-a-half hour drive and 289 miles from Nicholas County Community Center, where Bob Henry Baber barely escaped being sent to prison for a false drug positive, another probation center takes a very different approach.

In the city of Ranson, in West Virginia’s eastern panhandle, an inconspicuous building houses the only Community Corrections Program to twice be judged best in the state, in 2019 and 2021.

There are no probation officers with guns at the Jefferson Day Report Center. Clients are not discharged from the program for a drug positive.

If a client says “no way” to a drug positive, a retest by a lab is conducted or a different modality of drug testing is performed, if requested by the medical provider.

“Even though we are a Community Corrections Program, clients feel a sense of comfort knowing the facility will assist with their substance-use disorder and any co-occurring disorders by providing in-house medical and mental health treatment,” said Executive Director Kelly Franklin.

The focus is on individualized mental health and addiction treatment of the approximately 250 clients a year. As the only nonprofit community corrections in the state, Jefferson has designed more creative approaches to drug and behavioral problems. The Center accepts both Medicaid and private insurance.

The process begins with a behavioral assessment.

“We ask, ‘How do you feel today? Are you sleeping?’” Franklin explained.

The Center can choose the appropriate clinician from a number who work with the Center: “We have high level providers, many at the doctoral level.”

Even drug testing is more inventive. Various labs are used, as well as various modalities of testing. Remote drug testing is an option, if ordered by the judge.

Clients play a big role in shaping their treatment plan. Recently, they completed  the fifth community rock ceremony. Clients paint rocks with things they want to forget forever, then bury them deep through a private ceremony that is funeral style.

woman with dark hair and glasses

Gabriella Larios

The Center offers tele-health services to Day Report Centers in Preston, Hardy, Mineral, Grant and Hampshire Counties. Six counties, mostly in southern parts of the state, don’t have Day Report Centers. So judges and district attorneys have accepted Franklin’s offer of tele-health treatment programs.

“Clients are so desperate there,” Franklin said. “They sit in their cars in Walmart parking lots to get internet connection for treatment.”

Meanwhile, back in New York, Crystal and the NYCLU hope passage of the proposed legislation—along with a resolution of their complaint—will save other woman from being drug tested without informed consent.

The bill has not yet gone past the committee stage, but Gabriella Larios, an Equal Justice Works fellow at the NYCLU, and an attorney, is optimistic.

“Non-consensual drug testing of pregnant patients is both sex discrimination and racial discrimination,” she said. “It’s time for the State Division of Human Rights to recognize that.”

 Penny Loeb is a freelance writer based in northern Virginia.

ADDITIONAL READING: NY Inmates Sue Over Incorrect Drug Test Results, Nov 21, 2019, The Crime Report  

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