Doubt over the accuracy of court-ordered drug tests could have widespread implications for Utahns

PROVO, Utah — A Utah County couple says almost no one has believed them as they’ve tried to sound the alarm on what they believe to be false positive results from court-ordered drug tests.

“I wouldn’t believe it unless it was me living it, to be honest with you,” said Kalie Jones.

Jones and Nicholas Hulse are involved in a case within Utah’s child welfare system. Their children have been living in foster care for months, as the two work on their sobriety.

Utah’s Division of Child and Family Services was preparing to move forward with a trial home placement, allowing the children to return home just in time for the new school year. Those plans changed when Jones tested positive for methamphetamine.

Last week, during an expedited evidentiary hearing in the case, Jones claimed she was not using drugs and that positive test results in June and July were wrong.

“People permanently lost their children over these type of results,” she said, “and I’m afraid that that’s where we’re headed.”

The judge presiding over the case intends to release a ruling this month which could have far-reaching impacts on families throughout Utah.

Backup tests

Jones received what she believes are false positive results from random drug tests on June 7 and June 30. Both were oral fluid tests performed by Averhealth, the company DCFS contracts with for drug testing.

“The reason I say they’re false positives is strictly because I haven’t used and those tests were 100% clean,” Jones insisted.

Determined to prove she wasn’t using drugs after the positive results in June, Jones started taking backup tests at Premier Family Medical in American Fork. Staff members there agreed to provide monitored urine tests on the same days the state ordered her to test with Averhealth.

Averhealth’s contract with the state prohibits the use of oral fluid tests “as a substitute of a urinalysis when a same-sex collector is unavailable,” but Jones said Averhealth has violated that part of the contract on multiple occasions. When a female employee is not available to watch her provide a urine sample, she has been forced to do a saliva test instead.

Jones said that’s what happened on July 27. Records show she took a mouth swab test at Averhealth. The result was positive for methamphetamine. The same day, her urine test at Premier Family Medical came back negative.

The next day, July 28, Jones was called back to Averhealth, this time for a urine test. She also did another backup urine test that day. Both came back negative.

Despite the three negative urine tests, the positive mouth swab on July 27 halted plans for her children to come home. The first week of August, Jones and Hulse were informed they would instead have a supervised visit that weekend and their children would return to foster care Sunday evening.

“I knew that that was wrong and I had the backup test already to prove it,” Jones said, “but it’s done me absolutely no good.”

Contesting results

Jones says the attorney representing her in the matter, Erik Jacobson, is one of the few people who believed her. As he subpoenaed detailed testing records from Averhealth for tests in question and requested an expedited hearing in front of the judge, Jones disputed the results with her caseworker and escalated her concerns to DCFS supervisors and the agency’s constituent services.

“All I’m saying is that those tests are 100% clean,” Jones told KSL TV. “And why are they showing dirty? How?”

In an email on Aug. 11, a DCFS spokesperson told the KSL Investigators the agency was not “aware of any concerns regarding reliability” of Averhealth’s test results.

But Jones said several people at DCFS including the Western Region Director were aware of her claims and her plan to take backup tests. When results from the June 30 test came back positive, he wrote in an email to Jones: “Please say that you did a backup.”

DCFS Strengthening Families Program Administrator Kyla Clark said she couldn’t speak to why a region director would have asked Jones about taking a backup test. Clark said DCFS has confidence in Averhealth’s drug test results and has not seen widespread inconsistencies.

“Our system does not use just drug testing alone to make our decisions,” Clark said. “So, we really want to focus on that holistic assessment of that threat of harm, how are things going, that pattern of behavior and we really want drug testing to be a tool but not the answer or decision maker.”

Clark offered a number of avenues for people to raise concerns over drug test results within DCFS. Short of reaching out to Clark directly, Jones had attempted all of them. Ultimately, she was left holding onto hope that the evidentiary hearing would validate her claims.

“If they’re not getting the response from their caseworker, we highly recommend that they use their attorney to elevate this concern so that the courts can look at it,” said Clark.

Evidentiary hearing

Last week, Fourth District Juvenile Court Judge Douglas Nielsen held an expedited hearing at the request of Jones’ attorney to hear evidence regarding the inconsistent test results.

“I think that the ultimate decision here reaches frankly far beyond the decision I make in this particular case,” Nielsen said.

The judge heard testimony from both sides about drug testing standards, the risk of contamination in saliva testing and an additional level of testing experts say could help rule out false positives.

“The strengths of oral fluid testing are pretty much ease of collection,” said Dr. Eugene Schwilke, a toxicologist testifying on behalf of Averhealth.

Schwilke, who did not personally perform any of the tests in question, defended the results, saying because saliva and urine have different detection windows, it is possible to have conflicting results from different sample types taken on the same day.

“We don’t necessarily see concordance between oral fluid and urine specimens,” he said. “I’d say by and large, you do. Most of the time, you do and you should. But it’s fairly common to see some discrepancy.”

Schwilke also testified that there’s a downside to saliva testing – oral fluid is at risk for contamination in a way that urine and blood are not. The oral cavity can be contaminated by substances in the environment around you.

An Averhealth spokesperson told the KSL Investigators that based on the specific detection cutoff levels the company uses, environmental contamination will not trigger a positive result on their tests.

But in court, Schwilke testified that he could not rule that out.

“The concentrations that were detectable in these specific cases here are low enough that some form of environmental or inadvertent or unknowing exposure to the drug could have resulted in a positive oral fluid sample,” he said.

Kalie’s recent saliva tests show positive for methamphetamine but negative for amphetamine. During the hearing, another drug testing expert testified that federal workplace standards set by the Substance Abuse and Mental Health Services Administration, or SAMHSA, require both to be present in order to report a positive result.

That means the tests in question would not get someone fired from their job as an air traffic controller or discharged from the U.S. military, but they are being used as a tool to determine parental rights in Utah.

Averhealth and DCFS say they follow a different standard set by the College of American Pathology Forensic Drug Testing, or CAP-FDT, which is more suited for substance abuse monitoring. They say some requirements under SAMHSA conflict with substance use disorder monitoring best practices, including observed sample collection and different detection levels for drugs.

“CAP-FDT regulates a specific screen of methamphetamines, whereas SAMHSA uses a broader screen that detects both amphetamines and methamphetamines,” Averhealth spokesperson Jacquie Sheehey wrote in an email.

Illicit meth or medication?

Certain medications – like Robitussin or Vick’s inhalers – can masquerade as meth in a drug test, according to Dr. Scott Moore, a clinical pathologist and professor at Weber State University who agreed to review Jones’ test results.

Moore said there’s an additional test that can determine whether positive results represent true illicit methamphetamine or something else. It’s called an isomer test, and it will show the exact amount of two different compounds in the positive sample.

“If they do that, and they find the D-methamphetamine and the L-methamphetamine in similar proportions, then they know it was drug abuse,” he explained. “But if they if they only see the L-isoform, then they’re pretty sure that it came from like a Robitussin or some other medications.”

Moore said that added layer of testing could provide answers in situations where it appears someone has used illicit drugs, but the patient insists they did not.

“It’s really easy to tell,” he said, “but they do need to order that test.”

DCFS did not order that test for any of the positive methamphetamine results in question and Averhealth is adamant that isomer testing is not necessary for saliva samples.

“Select over-the-counter inhalers contain small amounts of the L-isomer,” Sheehey wrote in an email to KSL. “The amount of L-isomer is insufficient to cause a positive result based on the cutoff level we use. Therefore, it is not necessary to conduct a D/L isomer test.”

Caleb Proulx, an attorney who represents parents in Utah’s child welfare system, disagrees with the assertion that isomer testing is unnecessary.

“From the legal view, it seems unacceptable,” he said.

Proulx said extra testing for positive meth results should be an essential step DCFS and its contractors provide.

“If the lab didn’t do that test, they can’t tell the court with any sort of confidence – nor can the court rely upon that test – to say, ‘We know that it was illicit methamphetamine.’ They just don’t have that vital piece of information,” said Proulx.

He said the court is relying on a presumption that positive meth results equate to illicit meth, and in most cases, that’s probably true. But in the rare instances that it’s not, families are still counting on actors in the system to be sure.

“If the test results are being used to prejudice people, you’re losing your kids, or you’re in jail, absolutely we ought to be doing that testing,” said Proulx.

Litigation over Averhealth results

A Vice News article published in June reported doubt about the reliability of Averhealth’s results among state officials in Michigan. During an interview on Aug. 17, Clark confirmed DCFS was aware of those concerns.

The article cites official transcripts from a hearing in a Michigan family court case in which a former Averhealth lab director claimed up to 30% of Averhealth’s test results were inaccurate. During her testimony in February 2021, she alleged the lab had a practice of reporting results even when quality control tests failed.

“There’s litigation on both sides in Michigan that we’re, you know, not wanting to be part of,” said Clark.

Clark pointed to an independent review of Averhealth’s St. Louis lab – where Utah’s positive samples are sent for confirmation testing – that did not find evidence to support claims of false positive results.

The review was prompted by claims in the former lab director’s testimony, but in their report, the inspectors concluded, “The team is confident that the observed data was forensically and scientifically defensible in a court of law.”

Averhealth took over an existing contract with DCFS in September 2020, after the former contractor, Treatment Assessment Screening Center, went out of business. Clark said DCFS remains confident in the results of its court-ordered drug tests.

“We have a certified lab that’s using certified equipment for those confirmation tests,” she said.

According to its website, Averhealth does business in at least 36 states and maintains certifications through DEA and CLIA.

“If there were glaring errors with the lab, those certifications would not be renewed,” said Clark.

When asked why Averhealth has not been held to the terms of its contract with the state requiring staffing of both male and female employees at collection sites, Clark said, “We have attempted to hold to that contract.”

She cited the ongoing COVID-19 pandemic and widespread hiring issues facing many industries.

“It has become harder and harder to hire staff,” said Clark, “so this is our backup for having tests available.”

Waiting for answers

Still, there are concerns among those within the system about the state’s reliance on saliva testing. Proulx said it makes him uncomfortable.

Moore said urine has long been considered the gold standard, and saliva is “kind of this newer kid on the block.”

“My kids are riding on these tests,” said Jones.

The hours-long evidence hearing in their case brought on a range of emotions for both Jones and Hulse.

In the end, a visible wave of relief washed over them as the virtual hearing ended with Judge Nielsen promising to prioritize giving them an answer.

“Up until just now, just a moment ago, I was like, ‘There’s no way. We’re not gonna get our kids,’” said a teary-eyed Hulse. “But I think now, I think we’re gonna get them now.”

Jones and Hulse both admit to a history of struggling with addiction. When DCFS intervened, their family was in crisis, Jones said.

“I’ve had my periods of sobriety. I’ve had my periods where I’ve struggled,” said Jones. “However, I’ve had an open DCFS case since November, and I haven’t used meth since that case opened.”

While their drug testing history in the case is far from perfect, the two insist they’ve stepped away from using drugs completely, choosing instead to focus all their efforts on reclaiming their family.

“I know the results are going to come back in our favor because I know we’re not using drugs,” said Hulse.

Going forward, they want to have faith in the results of drug tests that, as of now, are part of the barrier between them and reunification with their children.

“I hope that this sets a ball in motion to create some change,” Jones said, “because it is so needed.”

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