Bexar Probation Director Bill Fitzgerald says his department does not do confirmation analysis when a preliminary drug screen comes up positive because it would be too expensive, but confirmations are free under their contract. The head of the urinalysis lab and Fitzgerald both say they stand by methodology that falsely accused probationers of drug use this spring, but they're changing it in response to criticisms. Meanwhile, the whistleblower who first raised these problems filed a federal lawsuit last Thursday, adding to the bizarre circumstances surrounding the story. Reported WOAI's Brian Collister:
“I don't believe in locking people up for dirty urines," said Bill Fitzgerald, the Chief Probation Officer during an interview in his office with the Trouble Shooters.I'm not a lawyer, but maybe some of the barristers in the crowd can help me out. If Fitzgerald a) knows the preliminary tests are inaccurate, b) ignores opportunities for free confirmation tests, and c) insists he stands by a methodology that clearly accused innocent people, doesn't that begin to border on willful negligence?
He says that he expected a spike in positive test results.
That's because back in February they stopped doing the drug tests themselves and hired a company that does drug testing called Treatment Associates.
They use a small, thin, rectangular-shaped, one-time-use device that is dipped in the urine.
It's called a rapid test.
The manufacturer says it's used as a preliminary test.
If a single line appears in one of the boxes on the face of the device, you are positive for that class of drug, but not necessarily an illegal drug.
"There's one issue there on my part that the test is more sensitive. So I anticipated we would end up with more people showing up positive for urinalysis. This test is more sensitive than the ones we used previously," said Fitzgerald.
In fact, it’s sensitive enough that many prescription, and even some over-the counter, drugs will test positive.
Something as common as cold medicine could land a person back in jail.
And knowing all that, the county is still using this single test to determine someone's future.
Fitzgerald says the probationers have the right to ask for a confirmation test, yet he admits they're not told they have that option.
Brian Collister asked Fitzgerald during the interview, "Why not do confirmations as a standard procedure?" Fitzgerald responded saying, "That is more up to the D.A. and the judges than it is to me." Collister asked, "But why wouldn't you do a confirmation before sending it to them?” Fitzgerald responded saying "We do confirmations but we don't...we don't do them standard." Collister asked, "But why wouldn't you?" Fitzgerald responded, "Well financially...it's um. It would really hit our budget for one thing."
But that's not true.
We requested the contract Bexar County Adult Probation Department has with Treatment Associates before our interview with Fitzgerald but we didn't get it until July 8th, the day we aired the story and a week after our interview. According to the contract, the department can request a confirmation test at no additional charge.
But Fitzgerald said he sees no reason to change his current procedures.
Collister asked Fitzgerald, "Are you comfortable with the way things are set up now where you do not do confirmations as a standard part of your procedure?" Fitzgerald answered without hesitation "Yes."
And the President of Treatment Associates, Jeff Warner, said he's comfortable with it, too.
"The rate in the positive tests I stand by. I stand by our procedures. I stand by the products that have been used in those procedures," said Warner during an interview in the cramped room where they refrigerate all the urine that tested positive over the past few months.
We also noticed in the contract that Treatment Associates is supposed to keep the urine that tested positive for six months in case the department requests a confirmation test.
But Warner is only keeping them for 90 days.
Because of all the problems the county is now moving to a less sensitive test and trying find a better way to handle the cost of confirmations.