The Texas Board of Nursing and TPAPN's Continued Misuse of EtG Testing
Recently I have been the attorney of record in nursing license defense matters against the Texas Board of Nursing for a number of registered nurses and licensed vocational nurses (RN & LVN Practice) in cases where a low level EtG test is in issue despite clear indications that these test results are inadequate proof of deliberate consumption of ethyl alcohol (ETOH). Thus the formal charge by the BON is unsupported by adequate admissible evidence and should not be the basis for the discipline of the nursing license / registration. In most of these cases a favorable result is anticipated for the nurse, but not without a long and arduous fight against the staff and lawyers of the Texas Board of Nursing.
Generally the cases arise in one of two ways:
- The Texas Peer Assistance Program for Nurses (TPAPN) is monitoring someone’s nursing practice pursuant to a Board Directive or Agreed Order and as such any low level test per TPAPN policy is considered a violation and is per se grounds for dismissal from TPAPN. This is also cause for a new report to the Texas Board of Nursing and Staff’s allegations / Formal Charges that the Nurse’s conduct is “unprofessional”;
- The Texas Board of Nursing has disciplined the license of a Nurse who is now under an Agreed Order and monitored by staff of the Board’s compliance and enforcement division (Carolyn Hudson for LVN Practice and Diane Burell for RN and APN practice).
In either case my law firm has seen low level tests where the result is less than 1000 ng/ml being used as an attempted basis for the unwarranted discipline of a nursing license by the attorneys and executive director of the Texas Board of Nursing in spite of clear advisory warnings that the test is in-and-of-itself flawed. Despite clear evidentiary problems staff of the Texas Board of Nursing still attempts to impose new disciplinary action against the nurse and their nursing license that generally involves either a voluntary surrender or an order of enforced suspension. This is especially egregious, as in most of the cases that the lawyers in my law firm have reviewed there is no indication that the nurse has actually violated their agreed order or the Texas Nursing Practice Act.
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In a recent case I am the attorney for a Nurse (RN) who admitted truthfully on her license renewal form that she had attended treatment for alcohol use and dependency (Substance Abuse). There were no practice issues alleged and a long history of quality nursing care provided. The Nurse was ordered to TPAPN under a Board Order and she had been compliant in TPAPN for almost two (2) years -22 months to be exact.
The client then threw off a low lying result for EtG which was under 500 ng/ml. Nevertheless TPAPN deemed her non-compliant and reported her to the Texas Board of Nursing for further prosecution and licensure discipline. Staff of the Board is now attempting to revoke her license even though she has never been charged or deemed to have committed a nursing practice error and there is no evidence that she has been anything but sober.
SAMSHA (the Substance Abuse and Mental Health Services Administration) has posted an advisory warning that the EtG lacks proven reliability and should not be used as the basis for regulatory action on its own. Despite this fact, staff of the Texas Board of Nursing continues to harass and punish nurses who do not hire an experienced attorney to defend themselves in a license defense matter involving allegations / violations of the Nursing Practice Act. The punishment is executed in the form of an Agreed Order of Surrender or Enforced Suspension until the nurse goes through unnecessary treatment again and demonstrates one-year of objective and verifiable proof of sobriety / abstinence. Any nurse with a vested interest in thier license owes it to themselves to call an experienced attorney so they may better understand and properly assert their rights.
Misuse of EtG Testing by the Texas Board of Nurse Exmainers & TPAPN
Recently I have had a flurry of cases where Texas nurses are accused of violating their Agreed Board Orders or their Texas Peer Assistance Program for Nurses (TPAPN) contracts due to positive Ethylglucuronide (EtG) tests in the 300 to 500 ng/ml range. In each case the Nurse denied consuming alcohol and corroborating evidence suggested they were sober; nevertheless, TPAPN expelled them from participation and a subsequent BNE investigation ensued against their nursing license.
This is clearly contrary to the admissibility of EtG testing in Court or as valid scientific evidence for the Board of Nurse Examiners to consider regarding these individuals knowing or intentional use of ethyl alcohol (ETOH). Please see my blog post: “What is EtG”. Moreover, it is a clear abuse of the power of both TPAPN and the BNE as they have decided their interpretations and determinations regarding EtG testing validity and use are superior to that of the Courts, SAMSHA and the scientific community at large.
Properly utilized, EtG testing can be an excellent screening tool to confront someone about a positive test. Oftentimes the initial confrontation will yield to an admission of a return to active drinking. However, when denied and all circumstances suggest that sobriety is in tact the EtG test in this range is insufficient in and of itself to prove alcohol consumption.
The BNE, however, is actively pursuing these cases in an effort to exact a surrender or active suspension of each nurse’s license. Moreover, one Client came to me after they had submitted to Board Staff’s request to undergo a forensic psychological evaluation and polygraph test. Although the test(s) yielded abstinence, Board Staff maintains other evidence developed during the psychological testing yielded information which shows the individual is otherwise unfit to possess a license to practice professional nursing in the State of Texas. The result –Formal Charges.
The bottom line is nurses who have been subjected to a BNE or TPAPN test for EtG and have tested positive should contact an attorney immediately for advice. Statements made to TPAPN or a Board investigator will be used by Board Staff against the licensee to pursue misconduct. Moreover, the inevitable request for a polygraph test is forthcoming and should be suitably denied. Please see my post titled - "The Polygraph Test: Just Say No to the BNE".
What is Ethylglucuronide -EtG Testing?
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.
