SPECIAL REPORT: Turning Passes into Fails

The owner of a medical testing laboratory conducting drug tests of probationers in Cook County says the chief probation officer and several judges are pressuring him for data so they can turn negative drug tests into positive ones—passes into fails.

by Lee Williams

A joint investigation by Illinois Policy Institute Investigative Reporter Lee Williams and CBS 2 Chicago Reporter Dorothy Tucker.

Download a PDF of this story here.

CHICAGO —The owner of a medical testing laboratory conducting drug tests of probationers in Cook County says the chief probation officer and several judges are pressuring him for data so they can turn negative drug tests into positive ones—passes into fails.

Warren Cooper, owner of Acculab Medical Testing, Inc., could be jailed if he fails to comply with a judge’s order to turn over the data,
which a previous vendor furnished regularly despite the serious legal ramifications raised by the disclosure.

“People who could have been successful in the drug court program were deprived of a real opportunity for success because the court was —misusing —the information,” Cooper said. “I don’’t think they should get away with this.”

Cooper, 56, founded Acculab in 1990. His firm has processed urine tests for the probation department for 12 of the past 14 years, and
processes more than a half-million drug tests annually for county, state and corporate clients.

After his firm tests a probationer’s urine specimen for marijuana, cocaine and a handful of other drugs, Cooper’s contract calls for him to provide a simple response: positive or negative.

If the results are positive, he’’s required to report the concentration level —the number of nanograms of the drug per milliliter or urine.

If the test is negative—according to testing threshold levels established by the federal government, the State of Illinois and accepted scientific and industry standards.— Cooper’’s firm does not provide any data; In other words, they furnish no numbers. The firm
simply tells the probation department the test is negative, and that the probationer passed the test.

Diet, prescription medications, over-the-counter cold remedies and other factors can influence the test; although they would likely cause concentrations well below the threshold cutoff level and still produce a negative result.

A drug test is similar to a pregnancy test, Cooper says: it’s either positive or negative.

“If it’s negative, you shouldn’’t say how negative it is,” he said.

Now, however, Cooper has been ordered to provide the courts with quantitative data for every negative test—the miniscule trace amounts that are far below the threshold cutoff level needed for a positive test—numbers that don’t reliably indicate the presence of an actual illicit drug. Cooper said the request not only violates his contract, but currently-accepted ethical, industry and scientific standards.

Why would the judges want to know these drug levels even if a probationer passed the drug test?

“My personal belief is they are doing this out of pure ignorance,” Cooper said. “They want the negative concentrations so they can make an uneducated, nonscientific, subjective decision as to whether an individual still has traces of a drug in them.”

He insists these numbers won’t help judges decide if someone is doing drugs, as judges have said they would.

“The numbers below the cutoff have no meaning, no relevance,” Cooper said.

Other court officials agree.

Rock Island County Court Administrator Janet Leone is president of the Illinois Association of Drug Court Professionals.

Leone said negative drug concentration levels are “meaningless.”

“If it’s under the threshold level, the number should not be reported, Leone said. “But this is a nationwide issue with drug courts.”

Cooper said court and probation officials have told him they believe drug users are sophisticated enough to use only a small amount of a drug, so as not to trigger a positive test —a flawed theory he questions.

“You mean to tell me a drug user has both the knowledge and the willpower to know how much cocaine they can use and still stay under 300 nanograms per milliliter? That’s insane,” he said. “And you mean to  tell me their drugs are always of the same purity? Drug users don’’t behave like that.”

The judges and acting-Chief Probation Officer Jesus Reyes, Cooper said, can’t understand that using negative testing data in a courtroom or a probation setting can lead to a miscarriage of justice.

“This is an unorthodox, nonscientific manner of providing tests and test results, and the victim becomes the poor, the indigent, those who can’’t afford a lawyer, who very well may have wound up in jail,” Cooper said. “I am being forced to commit what the scientific world deems as unethical behavior. That could lead to a revocation of probation or some type of sanction against the individual in the drug courts.”

Acculab has had the probation contract for 14 months, having reacquired it after he lost it to a lower bidder, who held the contract
for two years.

Cooper said the previous vendor, Treatment Alternatives for Safe Communities (TASC) didn’’t balk at providing the negative drug test data.

Carolyn Ross is vice-president of operations for TASC.

Ross confirmed TASC furnished negative drug concentration levels to probation and the courts—verbally.

“Because of our close relationship with the courts, we do it as a sign of progress, for example, to indicate how the person is doing while in treatment,” Ross said.

Cooper takes issue with the practice and the manner in which it carried out.

“The way it was being done was more dangerous than what was being done—verbally,” Cooper said. “The officer would call TASC, ask for the negative levels, and the vendor would give them the number. The officer would then meet with the State’s Attorney, the judge and others, and present the data. They would then make a decision based on that number—which was never put into the person’s file because they passed the drug test. It’s pure hearsay.”

Several Cook County probation officers said they could get the negative data easily by a phone call to TASC. They’d then furnish the
data in meetings with the judges and other court personnel. Decisions affecting the probationer’s status were made based upon this misleading data. The officers said they would likely be fired if their names were used in this story.

Ross defends the practice.

She said releasing the data is ethical, “if the client consents to it as part of the program.”

TASC, she said, tells their probationers they’ll release their drug concentration levels to the courts.

When asked if the probationers are informed TASC will release negative levels, Ross said, “not specifically negative levels, no.”

Unlike every expert interviewed for this story, Ross said negative drug concentration levels are reliable data.

When asked if she had any scholarly study indicating the data was reliable, Ross said, “No.”

When asked if she had any other empirical evidence indicating the data was reliable, Ross said, “No.”

When asked if releasing the negative concentration levels constitutes a violation of the client’s civil rights, Ross said, “I don’t have enough information where I could tell you I agree with that.”

When asked why legal experts, toxicologists, pharmacologists, treatment and other experts are all opposed to the practice, Ross said,
“I can only speak from past perspective. This is a tool we’ve used for a very long time to indicate progress.”

Cooper scoffs at this.

“You can’t show progress based on false information,” he said. “How can you show progress with data when you’re not sure what it means?”

Bad science
Cooper first learned judges wanted negative drug testing numbers in October 2009, in a meeting with Cook County Circuit Judge Douglas Simpson.

Neither Simpson nor Cook County Chief Judge Timothy C. Evans responded to calls seeking comment for this story.

Cooper tried to educate the judge about the impropriety of his request by providing a 16-page scholarly paper and a personal letter written by Paul L. Cary, a nationally-recognized drug testing expert who directs the toxicology lab at the University of Missouri Hospital and Clinics in Columbia.

Cary has more than 30 years of experience conducting drug tests for hospitals, mental health facilities, law enforcement, medical examiners and government and corporate agencies. In addition, he has authored numerous scientific papers, served on a variety of technical advisory committees and both conducts drug-testing research and teaches at the University of Missouri. He’s certified as an expert witness, and has personally trained thousands of judges and other criminal justice professionals in several countries about the proper use of drug testing data.

In his letter sent to Reyes and the judge, Cary wrote that urine drug testing is “qualitative —which means that the purpose of the drug
test is to determine either the presence or absence of a drug(s) in a urine sample.”

The letter outlined the impropriety of trying to interpret negative data.

“Urine screening tests are not designed to produce accurate concentration information about ‘how much’ drug a urine sample contains and are not intended for developing interpretations about past drug-use behavior,” the letter states. “A negative drug test result cannot be interpreted in any other manner than negative. Court-affiliated professionals entrusted with the protection of client rights are obligated to abolish the practice.”

Cooper also provided the judge with a letter from Dr. Donald L. Frederick, a board-certified forensic toxicologist with more than 30
years of experience. Frederick is both an associate professor at the University of Illinois Medical School at Peoria and a clinical chemist and toxicologist employed by the Peoria Tazewell Pathology Group.

Negative test data “should not be used as an estimation of the presence of a drug or in any quantitative or semi-quantitative
interpretation. This has been the overwhelming opinion of the forensic toxicology community as presented at national and international forensic toxicology meetings,” Frederick wrote.

Despite their lofty credentials, neither Cary’s nor Frederick’s correspondence had any effect on the judge.

“I tried to do some education —tell him that those numbers don’’t mean what he assumed them to be,” Cooper said. “He basically said, ‘I want those numbers. I don’’t want to hear it. Get out of here,’ and he threw me out of his office.”

In an interview with the Institute, Cary said the use by a court of negative drug test data is a “misapplication of the test.”

Any decision by a judge based on the data, he said would likely not be valid.

“It certainly would not withstand a [legal] challenge,” Cary said. “[The decision] is not built on any forensic or scientific foundation if the
data is used in this way.”

In March 2010, after his meeting with Simpson, Cooper sent a letter to Reyes, informing him of the judge’s order and requesting a meeting. He attached Cary’s letter and scholarly article. He didn’’t hear from Reyes for seven months.

“By that time, I had three court orders to provide the negative urine concentrations,” Cooper said. “I arranged a meeting with the Chief
Judge to make him aware of the jeopardy—that I was at risk for contempt of court for not following those court orders.”

The chief judge said his probation chief would handle the problem, Cooper said.

Cooper and his staff met with Reyes in October, and once again introduced solid scientific evidence that the use of negative urine concentrations was not proper or ethical, and that it needed resolution quickly, or he could go to jail.

“Mr. Reyes said he had nothing to do with any court orders from a judge. He further said he would get back to us within 30 days,” Cooper said. “The way he saw the problem was not one of right or wrong. He saw it as whether the judges were entitled to the negative drug numbers. He said he was going to commission a study and get back to us within 30 days. We’re still waiting for him to get back to us.”

Reyes did not respond to calls seeking comment for this story.

The court order Cooper faces today leaves little room for maneuver: “It is hereby ordered that Acculab shall provide to the Cook County Adult Probation Department, test results showing all levels of detection, regardless of the cutoff threshold, for samples submitted for testing in Drug Court cases in this district.”

Bad policy
The Illinois Policy Institute polled a third of the 29 drug courts operating in Illinois outside of Cook County. None said
they use negative drug concentrations.

Illinois Association of Drug Court Professionals president Leone said a few jurisdictions in Illinois still occasionally use negative drug concentration levels— a practice she believes is problematic—despite overwhelming scientific evidence that shows the numbers are unreliable.

“The problem is there are no statewide standards,” she said.

Leone said the Administrative Office of the Illinois Courts should promulgate rules for every drug court operating in the state, especially regarding the use of negative drug concentration levels.

They should be providing us with standards on how they want us to deal with drug testing,” she said. “I think this would be a very good
idea.”

Bad for recovery
Treatment experts say misusing the data could prove harmful to a person’s recovery.

Jake Epperly, owner of the New Hope Recovery Center, said one of the reasons thresholds were first established was to eliminate false
positives caused by a variety of reasons, such as brief passive inhalation.

“If they haven’t used for X-amount of days and probation goes by numbers below the threshold, that doesn’t really provide an accurate picture of the current state of the person. The level could be from before they decided to make the decision regarding treatment,” Epperly said. “If they’’re thrown in jail for violation of probation, the emotional and mental pain it causes could impact their recovery.”

Bad for the department
Acculab’s contract with the probation department clearly spells out that negative drug concentrations are not necessary. The contract requires “results indicating either that the sample was negative for all drugs tested or positive, with names and nanogram levels of drug(s) identified.”

The contract also requires Acculab to test urine specimens of probation officers and other employees of the department. The contract clearly states that negative urine concentrations are definitely not needed when a member of their probation department is tested.

“Negative test results shall specify only that the test was negative for the particular substance(s) tested,” the contract states. “Negative
test results shall not remain in the Department Employee’s records.”

A personal toll
Cooper said he is proud that his firm is the only minority-owned drug testing lab in the country.

The ongoing controversy has taken a toll on him and his family.

“I wake up every morning and go to bed every night under the threat of losing my freedom because I’m standing up for people who can’’t stand up for themselves,” he said. “My father was a probation officer. The only reason I have a special interest in this contract is that I am an extension of him. I regret that is has gotten to the degree where it’’s at now.”

Despite the possibility of jail, Cooper won’’t turn over the data sought by the judge.

Said Cooper: “Someone has to take a stand. We have probation officers with no training in pharmacology making decisions of who’’s on probation and who’’s not. It’s sad, but this is the reason I’’ve been put in business. We have helped people and we will continue to do so. That person on probation could be my child. That could be my brother. Either do it right or don’’t do it. What I am trying to be is a voice. I’m not playing the race card, but the people who are being harmed are minorities.  That’s why I’’m saying, ‘No judge. I’’m not going to do it.’”

Download a PDF of this story here.

Illinois Policy Institute intern Wesley Fox contributed to this report.