Important Update for Texas Nurses on a Board Order: Texas Board of Nursing Starts Screening for EtG and EtS
During the last month my firm has experienced an influx of calls from nurses who have tested positive for alcohol while on an Order with the Texas Board of Nursing. The consequences of testing positive for a prohibited substance, including alcohol, while under a Board Order can be quite severe. This includes an automatic temporary suspension of the nurse's license and a high likelihood that this suspension will be continued until the nurse has subsequently obtained twelve consecutive months of sobriety verified by additional random drug and alcohol testing. Moreover, from a legal perspective it is very difficult to mount an effective defense in the face of a positive test and avoid these harsh consequences.
The reason for the sudden increase in nurses testing positive for alcohol appears to be the Texas Board of Nursing's new decision to include testing for ethyl glucuronide (EtS) and ethly sulfate (EtS) in their screening panel. Previously, the screening company used by the Texas Board of Nursing only tested for ethanol, however, the Board recently signed a contract with a new vendor that includes both EtG and EtS screening in their panel. This is crucial as the sensitivity and detection window of EtG and EtS testing is much higher than a traditional urine ethanol screen.
Ethanol, or alcohol, is the primary intoxicating ingredient in alcoholic beverages. Accordingly, a person who has ingested alcohol will only test positive for ethanol as long as the alcohol remains in their system. Once it has been fully metabolized by the liver, the person will no longer test positive. Given this is a relatively quick process ethanol testing will generally only provide a 10-12 hour window in which to detect if a person has ingested alcohol. If the person has only had one or two drinks, the detection window is even shorter.
In contrast, EtG and EtS testing can detect even light alcohol use over a period of several days. Additionally, these tests, and the low cut-off levels used by the Board, are highly sensitive to even a small amount of alcohol ingetsion. It is also well documented that inadvertent, casual exposure to alcohol in the environment can cause a person to test positive. Sources of incidental exposure to alcohol that can cause positive results include:
- hand sanitizers containing alcohol;
- foods containing trace amounts of alcohol;
- non-alcoholic beers such as O'Doul's;
- colognes and perfumes;
- sustained exposure to gasoline and other chemical agents containing alcohol;
- mouthwashes containing alcohol such as Listerine and Scope;
- over-the-counter medications containing alcohol;
- certain natural and herbal medications.
I am unaware whether the Board has provided nurses testing pursuant to a Board Order with information concerning this new testing panel. Ideally, nurses should also be provided with a list of different substances which can inadvertently cause a positive result. For many years, nurses in the Texas Peer Assistance Program for Nurses been given this information prior to their enrollment in testing and hopefully the Board is doing or will soon be doing the same. This is also the standard of practice for the Texas Physician Health Program and the Professional Recovery Network.
Texas nurses testing through the Board need to be made aware that they are now being tested for EtG and EtS and receive education on how to avoid an inadvertent positive. Whether a nurse who has already tested positive can mount a legal defense is largely dependent on their test level and whether they were positive for both EtG and EtS. A low positive can be an indication of only inadvertent exposure to alcohol while a test that is positive for EtG but negative for EtS strongly suggests either a contaminated sample or the spontaneous production of ethyl glucuronide in the specimen container. In District Court actions, my firm has previously successfully challenged on these bases two automatic suspension orders entered against physicians by the Texas Medical Board.
If you have tested positive for EtG or EtS, it is prudent to contact an attorney with Board experience immediately to explore your legal options. The Board is likely to move quickly to temporarily suspend your license and time is of the essence. Even if a suspension is inevitable, oftentimes an attorney can be useful in negotiating a subsequent Order with the Board that minimizes the amount of time the nurse will be unable to practice.
The Texas Peer Assistance Program for Nurses (TPAPN) has a long history of helping Texas nurses suffering from chemical dependency regain control over their lives and keep their license in the process. Nurses referred to TPAPN are able to confidentially undergo treatment and later return to nursing practice. Texas nurses should be aware of two new changes regarding the TPAPN program, one positive and one negative. For a description of TPAPN please see my law firm's web site or blog post from July 2007 entitled "What is TPAPN"
On the positive front, the TPAPN program has developed a new category of treatment named the Extended Evaluation Participation (EEP). To be eligible for the EEP program, the nurse must be involved in an isolated drug incident with no other history of substance abuse and, after professional evaluation, be found to have a low probability of chemical dependency. Participants are subject to one year of drug screening, with a minimum of 18 screens, and are allowed to continue work without any restrictions during this period. If there are no positive screens at the end of the year, the nurse is discharged from the program and their participation and the initial incident remain confidential. Yet, if there is a positive screen or the nurse fails to adhere to the screening program, the participant will be referred to the Texas Board of Nurse Examiners. This new category of treatment program should prove beneficial to the class of nurses who become involved in an isolated incident involving a chemical substance, maybe even inadvertently, and also are not actively abusing that substance and show a low risk of doing so in the future.
Unfortunately, this step in the right direction is undermined by a change in the confidentiality provisions of the standard TPAPN treatment program. Traditionally, nurses whose practice was impaired by substance abuse or mental illness could be either referred by a third party or self-referred directly to TPAPN without the involvement of the Board of Nurse Examiners. Under the new regime, however, the Board must be notified of any referral that involves a practice violation, such as diverting medication or practicing while impaired.
While it is understandable that the Nursing Board would want to be apprised of instances of impaired practice, I fear this change could have an overall negative impact on Texas nursing. Nurses suffering from mental illness or a chemical dependency will likely be more reluctant to self-refer to TPAPN once they know that the Nursing Board and their license will be involved. This may lead to more nurses putting off seeking help until their situation and the potential well-being of their patients become much worse. The old confidentiality provision was specifically, and wisely I think, designed to promote self-referrals to treatment. Now, nurses will have to be more careful in deciding whether to report. Unless they qualify for the new Extended Evaluation Program, the threat to their license will be much more serious.
Ethyl Glucuronide (EtG) is a metabolite created by the body following alcohol consumption. Testing for this metabolite, typically via a urine sample, has become increasingly prevalent in the United States following its initial approval and use in Europe especially by agencies concerned with monitoring an individual for any relapse or return to active drinking. Many favor EtG sampling because it is a “direct” test for alcohol consumption in contrast to older, more traditional tests like Gamma Glutamyl Transferase or Carbohydrate-Deficient Transferrin which look for indirect signs of alcohol use such as liver damage. Further, while older tests generally only become positive following heavy alcohol use, EtG can be present in the urine after only a single drink. Moreover, EtG remains in the body and is detectable in urine three to five days after consumption
Unfortunately, EtG testing has several serious short-comings that limit its viability as an stand-alone objective marker of recent alcohol consumption and relapse. In the area of medical testing, a test is characterized by two qualities: sensitivity and specificity. Sensitivity measures the ability of the test to correctly identify those individuals who do have the condition of interest, here relapse, while specificity measures the ability of the test to correctly identify those persons who do not have the condition of interest. EtG testing has a high sensitivity, that is it has a high probability of correctly identifying as positive an individual who has recently relapsed. However, it also has a low specificity, that is it has a high probability of showing as positive a person who has not recently consumed alcoholic beverages. For example, research has shown that use of everyday items such as bug spray, mouth wash, various over-the-counter medicines, and hand sanitizer can produce positive results. Additionally, without further research, testing facilities have been unable to arrive at a consensus on the level of EtG that should be considered positive for a relapse. The high level of false positives seriously undercuts its status as a viable test for relapse and can easily lend itself to abuse by monitoring agencies such as the Texas Medical Board or the Texas Board of Nursing (Formerly known as the Texas Board of Nurse Examiners).
In fact, EtG’s failings have led the US Department of Health and Human Services to advise cautious interpretation of test results and have expressly stated that use of EtG “is not warranted as a stand-alone confirmation of relapse...” Likewise, Dr. Gegory Skipper, a pioneer and continued advocate of EtG testing, has counseled monitoring agencies that a positive test could very well be the result of incidental exposure to alcohol. These failings readily lead to the test’s misuse by Examining Board’s & Board Staff resulting in a plethora of unwarranted and unfair disciplinary action against their respective licensees.
EtG testing can be an excellent tool to help detect a return to active drinking / addiction, but its shortcomings must be adequately considered. Properly utilized, it affords a compliance officer or State licensing agency an opportunity to confront and question someone about their positive test and specifically inquire as to their program of recovery. Oftentimes a relapse is admitted and can be dealt with swiftly and appropriately. However, if relapse is denied and the licensee’s program appears otherwise strong, the EtG test in and of itself may not provide enough ammunition to warrant disciplinary action.