Utah's DCFS stops using drug testing company following KSL reports on claims of false positives

SALT LAKE CITY — Home is a lot louder these days for Nick Hulse and Kalie Jones. As they settle into the sounds of their children making snacks or crafting on weeknights, they know these are moments they had to fight for.

"I'm just grateful to have my kids," Jones told the KSL Investigators. "You just can't give up."

Jones and Hulse weren't just fighting to overcome addiction so their children could come home from foster care. They were also fighting positive drug test results they insist were wrong.

Their fight involved Jones taking back-up drug tests trying to prove she didn't use methamphetamine, as well as lawyers, court hearings, irreplaceable time with their children lost, and finally, a call to the KSL Investigators.

"The only reason we made it through the process is because we wouldn't shut up, and because you guys came and helped us," Jones said. "They weren't going to do anything about it. We had files and files and files of evidence, and nobody cared."

The KSL Investigators have since learned Utah's Division of Child and Family Services is no longer contracting with Averhealth to conduct court-ordered drug tests. Additionally, DCFS is conducting an audit of its response to complaints by parents regarding test results.

Both developments come after the KSL Investigators reported concerns of inaccurate test results and the company's failure to follow protocols outlined in its contract with the state.

Back-up tests

A KSL investigation last year revealed the company was violating the terms of its contract in Utah by frequently substituting mouth swabs for urine tests when a same-sex employee was not available to monitor collection of the sample.

Jones reached out to the KSL Investigators after she was forced to take saliva tests on multiple occasions due to staffing issues. Concerned the results were inaccurate, Jones had arranged to take back-up urine tests at another facility.

During a two-day period in July, Jones took four tests: one saliva test with Averhealth, one urine test with Averhealth, and two urine tests with the other provider. Despite all three urine tests coming back negative, the saliva test showed up positive for methamphetamine, suspending plans for her children to come home.

"It gets really difficult when you are trying to work through your issues anyways, and then you're being accused of doing something that you know you haven't done," Jones said.

'Serious concerns'

The KSL Investigators took Jones and Hulse's concerns to DCFS officials in August.

"We're not having widespread inconsistencies," said Kyla Clark, administrator of DCFS' Strengthening Families Program. "Our volume of testing is about 5,000 per day. They're very one-off, and we want to address them as a one-off and really look into each unique situation."

At the time, DCFS officials insisted they had no reason to doubt the results.

"We have a certified lab that's using certified equipment for those conformation tests," Clark said.

But a Utah judge later threw out Jones' positive results in question, citing "serious concerns," and Hulse and Jones now have custody of their children.

And KSL learned as of February, DCFS chose not to renew its contract with Averhealth.

"The Utah DCFS contract was a competitive bid process through a Request for Proposals (RFP) as the current contract period with Averhealth had ended," Averhealth director of marketing Jacquie Sheehey wrote in an email to KSL. "Averhealth was not awarded the new UT DCFS contract and at no point were we informed that this was related to any testing issues."

Sheehey said Averhealth stands behind its test results.

DOJ Investigation

Court filings show Averhealth has been under investigation by the Department of Justice for allegations of medical fraud and fighting a federal lawsuit filed by parents in Missouri over claims of false positive results.

Public filings attached to the lawsuit include emails between the DOJ, the Michigan Attorney General's Office, and Michigan Department of Health and Human Services officials discussing an investigation by the DOJ into allegations of fraud against Averhealth in the summer of 2021.

Additionally, an executive briefing emailed to Michigan DHHS employees in March 2022 included in the federal suit filings states the department discontinued its use of the drug testing company after learning Averhealth was under investigation by the DOJ for medical fraud.

The DOJ did not respond to an inquiry from the KSL Investigators seeking additional information about the investigation.

Sheehey wrote in an email to KSL, "Averhealth is cooperating with the Department of Justice and the Department has not made any allegations against Averhealth."

'Who else?'

Utah judges considered Averhealth test results in child welfare cases for more than two years, Jones noted.

"Who knows who else, you know, has suffered through the same stuff?" she wondered aloud.

A year before the KSL Investigators sat down with DCFS, a mother in San Juan County desperately fought test results that showed positive for alcohol.

"I know I didn't drink alcohol," she is heard telling the judge in an audio recording of the hearing obtained by the KSL Investigators. "If you drink, your levels are very high. Look at my levels, your honor."

According to testimony in the case from an Averhealth toxicologist, the positive results could have been triggered by a number of things other than drinking alcohol, including contamination of the sample.

"These are low enough to be consistent with an inadvertent exposure as opposed to somebody who's drinking alcoholic beverages," Dr. Eugene Schwilke testified.

Those test results were dropped from the case, but that didn't trigger any changes or review to how DCFS and Averhealth reported positive results moving forward.

"If anything, this is an example of the process working," a DCFS spokesman told KSL. "The expert you reference is a requirement based on our drug testing contract. They are there to speak during the process of a case, to ensure the court has all the available information when making decisions."

'Probably something going on'

Caleb Proulx, an attorney who represents parents in Utah's child welfare system, says the challenge for parents contesting drug test results is that the system typically favors the result, rather than the client's word.

"Anecdotally, for me, I was seeing more complaints over the last year and a half," he said. "So, my conclusion was that there was probably something going on."

Proulx said people are often punished before there's time to challenge the results. He believes that happened recently to one of his clients.

"What I know now is that I don't think that that should have been a positive result," he said. "I don't think that my client should have spent two days in jail. But at that point, it was too late."

An email thread between Jones' attorney and Averhealth in July revealed the company charged $250 for a "litigation packet" that would include materials and records necessary for another toxicologist to review the testing. There was also a processing time of at least seven days once the company received a mailed check for payment.

Proulx said the uptick in complaints prompted him to get in the habit of requesting litigation packets from Averhealth any time his clients expressed concerns over the accuracy of results.

"I spent a lot of money last year just doing that so I could look into this matter," he said. "Frankly, I'd gotten to a point recently where I had lost a lot of trust. I didn't know how much to trust various test results I was looking at."

Beechtree Diagnostics

DCFS awarded Beechtree Diagnostics a five-year, $6 million contract that started in February, after the contract with Averhealth expired.

The Utah company's website boasts a process it claims reduces the possibility of false-positive results.

And, according to its contract with the state, Beechtree Diagnostics provides an added layer of testing for meth-positive results that can determine whether the sample contains true illicit methamphetamine or something else.

It's a test Proulx has argued should have been routine, but Averhealth previously told the KSL Investigators was not necessary.

"I'm cautiously optimistic that things might improve," Proulx said.

Language in the contract between DCFS and Beechtree also now permits the use of saliva tests in lieu of

urinalysis when a same-sex collector is not available.

DCFS audit of drug testing complaints

DCFS did not agree to an interview about the new contract, but in response to questions from the KSL Investigators, the division is now conducting an audit of complaints related to drug testing that were submitted to the Office of the Child Ombudsman during the time they were using Averhealth.

"We just simply don't know what sort of impact this has had on parents," Proulx said. "I do think they have an obligation to do that, to make it right."

But, he noted, many parents who've had concerns about their results and even contested them in court might not have taken the extra step to file an ombudsman complaint.

"The hand-audit that is being conducted is reviewing complaints from the DHHS Office of the Child Ombudsman in an effort to collect data to support whether the current system in place allows families access to multiple pathways to express questions, complaints, and concerns along with their ability to be appropriately addressed by DCFS," spokeswoman Miranda Fisher wrote in an email to KSL. "The use of the DHHS Office of the Child Ombudsman is the most efficient way to receive tangible data for the scenario presented. DCFS is not under the impression that this is the only way to verify these complaints."

Fisher said the audit is expected to be completed near the end of March, and DCFS has previously said the findings will be made available to the public.

"The goal of DCFS is to provide as many avenues as possible to allow parents a pathway to express their questions, concerns, and complaints," Fisher wrote. "Should this hand-audit produce data that suggests the current system in place can be improved, DCFS will work diligently to remedy the negative findings."

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