Department told to stop for lack of certification
BY ANDY DAVIS
ARKANSAS DEMOCRAT-GAZETTE
LITTLE ROCK, Ark. — The Arkansas Department of Community Correction should be exempt from regulations setting standards for medical testing, and an order directing it to stop testing probationers and parolees for drug use would create a “serious hardship” for the state, the department’s director said.Community Correction Department Director David Guntharp made the arguments in a letter faxed to the Centers for Medicare and Medicaid Services late Monday and provided to the Arkansas Democrat-Gazette on Tuesday.
The federal agency has directed the department to stop testing its 49,000 probationers and parolees for drugs, saying the department lacks the proper certification.
“The Courts of Arkansas rely on the DCC to perform the tests, which are an integral part of appropriate supervision,” Guntharp said in his response. “Without such drug testing a vital component of determining compliance with a criminal sentence would be missing.” The order, issued in a letter last Friday, directs the Department of Community Correction to stop testing by Friday, warning that anyone who violates the certification requirement could be subject to “imprisonment, fines or both.” The certification is required under the Clinical Laboratory Improvement Act, a law passed by Congress in 1988 to ensure that tests of human fluid and tissue samples are reliable.
The law requires certification for laboratories that provide testing “for the purpose of providing information for the diagnosis, prevention or treatment of any disease or impairment of, or the assessment of health, or human beings.” The law exempts testing performed for “forensic purposes,” and Guntharp contended that the department falls under that exemption.
“Any drug testing performed by DCC is for the purpose of determining whether there has been a violation of the law,” Guntharp said in his response.
A U.S. Department of Health and Human Services spokesman told The Associated Press on Monday that the letter was sent because the Community Correction Department’s Pine Bluff office, which was inspected June 24, offered treatment and counseling for those using illegal drugs.
“Drug testing that is followed by counseling/treatment is covered by CLIA and has been an ongoing policy with CLIA since its inception in 1992,” Tony Salters, a spokesman for the Centers for Medicare and Medicaid Services, said in an e-mail to the Democrat-Gazette on Tuesday.
But Carl Wicklund, director of the Lexington, Ky.-based American Probation and Parole Association, said in a statement Tuesday that the order was “highly unusual” and could have a “major impact” on probation and parole agencies across the country.
“I think the primary purpose for drug testing offenders is forensic purposes and that that created an exemption for community corrections agencies,” Wicklund said.
Centers for Medicare and Medicaid Services officials didn’t respond to an inquiry Tuesday about whether any other probation and parole agencies have been certified to conduct drug tests.
When regulations implementing the law were published in 1992, the Centers for Medicare and Medicaid Services, then known as the Health Care Financing Administration, addressed concern by law enforcement agencies about whether the requirements would apply to them.
According to comments in the Federal Register, law enforcement agencies are exempt from the certification requirement unless the results are used for diagnosis or treatment.
“The determining factor is not the test itself, but the purpose for which the test is conducted,” the agency said in the register.
Under the law, laboratories that perform tests of moderate or greater complexity must meet federal standards and are inspected every two years. Federal regulators also test laboratories’ results for accuracy three times a year.
Laboratories that perform only simple tests, including some drug tests, can apply for a “certificate of waiver.” The laboratory must pay a $150 fee every two years, but is not subject to routine inspections.Community Correction Department employees test urine samples using kits or machines at the department’s 52 offices around the state, said department spokesman Rhonda Sharp. If a probationer or parolee disputes the results of the test, the sample is sent to a private laboratory in Memphis for confirmation, Sharp said.
The Department of Correction, which operates the state’s prisons, tests inmates’ urine using kits made by Redwood Toxicology Laboratory of Santa Rosa, Calif.
Samples that test positive are sent to the company’s laboratory for confirmation, said Dina Tyler, department spokesman.
Copyright 2008 Little Rock Newspapers, Inc.