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.