January 4, 2022
- DOCCS drug testing policies in 2019 found to be in direct contravention of manufacturer instructions and resulted in preliminary testing results being used to impose significant penalties on incarcerated individuals.
- These preliminary tests ultimately proved to be highly unreliable, producing rampant false positives, yet more than 1,600 incarcerated individuals suffered sanctions as a result, including 140 people who were subjected to solitary confinement.
- DOCCS failed to properly investigate reason for spike in positive results after use of Microgenics test began, failed to take prompt corrective action upon learning about unreliability, and company representatives obstructed efforts of sanctioned people to challenge the results by providing false or misleading information in administrative hearings.
- Following investigation, 2,500 disciplinary reports expunged, lost privileges reinstated, and use of solitary confinement eliminated as possible sanction for positive drug tests.
ALBANY, N.Y. – New York State Inspector General Lucy Lang announced today that incarcerated people across New York State were subjected to internal penalties including solitary confinement, had their sentences lengthened, parole hearings delayed, family visitation privileges revoked, and suffered other punishments based upon a highly flawed drug testing program between January and August 2019 administered by the New York State Department of Corrections and Community Supervision (DOCCS).
The Inspector General’s investigation found that these sanctions, which impacted more than 1,600 people during that eight-month period, were based upon preliminary positive results for the presence of the opioid buprenorphine, without obtaining confirmation by more specific alternative tests as was required by the instructions provided by the manufacturer, Microgenics Corporation. DOCCS then failed to properly investigate the reason for a significant spike in positive test results after the implementation of the new tests or take prompt corrective action upon being presented with scientific evidence that many of the results were false positives. The investigation also found that representatives from Microgenics frustrated the efforts of the incarcerated people who attempted to challenge their charges at administrative hearings by providing false or misleading information about the tests’ reliability.
DOCCS informed the Office of the Inspector General (OIG) of the potential reliability issue on September 19, 2019, after it had already discontinued use of the test to screen for buprenorphine. Between September 11, 2019 and October 22, 2019, DOCCS reviewed and reversed the punishments of those individuals found guilty of violations based on buprenorphine tests, including the release of 140 individuals from internal confinement. On November 5, 2019, after receiving preliminary results of OIG’s investigation, DOCCS ceased imposing penalties based on any positive drug tests results using Microgenics systems without first confirming those results using a more specific method and outside laboratory. On December 31, 2019, as a result of OIG finding similar flaws in DOCCS’ testing for synthetic cannabinoids, DOCCS agreed to reverse and expunge all related disciplinary dispositions. On January 15, 2020, DOCCS terminated its contract with Microgenics. On February 22, 2021, DOCCS resumed its Incarcerated Individual Drug Testing Program after acquiring another drug testing vendor. DOCCS also revised its Urinalysis Testing Policy to require that “all initial positive test results will be sent to the outside laboratory for confirmation testing.”
“The fact that incarcerated New Yorkers were further deprived of their liberty without cause or due process is devastating,” said Inspector General Lang. “While those individuals who were aggrieved by this flawed testing program cannot get back the time or liberties that were unjustifiably taken from them, I am encouraged that DOCCS has taken steps to rectify these injustices and recognized that the use of solitary confinement as a potential sanction for drug use disciplinary violations should be prohibited. My office will continue to diligently monitor this program to ensure that the reforms outlined in our report continue to be implemented. I am proud of the incredibly thorough work done by members of my office to not only find out what happened here, but how it happened, and how to ensure that it never happens again. We owe more to community members in our state facilities.”
“J,” a mother and grandmother from Western New York, provided one such story during this morning’s press conference in Albany. She described how, after her admission in August of 2019 to the Shock Incarceration Program at DOCCS’ Lakeview Facility, a Microgenics drug test wrongly indicated that drugs had been detected in her urine sample. Because of this and a subsequent Microgenics test on the same sample, she lost privileges including visitation, recreation time, receipt of packages, and telephone use for a total of 30 days. She was removed from the Shock program, which if she had completed without incident, would have made her eligible to be released within six months. Instead, she was sent to Albion Correctional Facility and not released until September 2020, missing the birth of a grandchild.
“In August 2019, I was informed that I tested positive for synthetic marijuana via a urine test--I had never used this substance,” said J. “This test was wrong. It was a false positive. I was following the rules, working to complete the Shock program for early release. They took that away from me. Because of these drug testing failures, I remained incarcerated until September 2020 and I missed out on the birth of my grandchild. I am grateful to Inspector General Lang’s office for figuring out what went wrong and how to stop it from ever happening again like it did to me. Everyone incarcerated in a New York facility is paying their debt to society. It is unfair for DOCCS to add to that debt through a faulty drug testing program. It must be fixed.”
Karen L. Murtagh, Executive Director of Prisoners’ Legal Services of New York, said, “The Inspector General’s report shines a much-needed spotlight on activities within the Department of Corrections and Community Supervision that have significantly impacted the basic human rights of incarcerated people. Prisoners’ Legal Services was founded 46 years ago, after the Attica uprising, to protect those rights, and we commend Inspector General Lang and Governor Hochul for their hard work and partnership in providing us with the tools necessary to ensure that justice is done.”
Bianca Tylek, founder and executive director of Worth Rises said, “The Inspector General’s investigation uncovered what is a systemic problem throughout New York’s correctional infrastructure: for-profit interests undermining and even violating people’s civil and human rights. Microgenics, a subsidiary of publicly traded Thermo Fisher Scientific, was allowed to rewrite and guide DOCCS’ drug testing policy in service of its own bottom line with catastrophic consequences for New Yorkers. We’re glad DOCCS has dropped Microgenics and will overhaul its policies, but the corporation must be held accountable and all DOCCS vendors should be reviewed for the exploitation of those in its custody. To that end, we applaud the Inspector General for not just shining a light on the failures of DOCCS’ drug testing program, but for also dedicating resources to the ongoing review of DOCCS grievances for the first time.”
After a comprehensive review of all possible adverse impacts for incarcerated people, DOCCS expunged approximately 2,500 disciplinary records for various drug violations and took numerous other remedial actions, including new interviews with the Board of Parole, reinstatements to temporary work release programs, return of lost good-time credit, reassessment of status in substance abuse treatment programs, payment of lost incarcerated individual wages or relocation to an area-of-preference facility. Additionally, in December 2019, DOCCS also eliminated segregated confinement as a potential sanction for positive drug tests.
SUMMARY OF INVESTIGATION
The Inspector General’s investigation included interviews of more than 40 witnesses, including DOCCS staff, incarcerated people, toxicologists and Microgenics representatives; as well as the examination of tens of thousands of documents, including drug tests, disciplinary records, DOCCS emails, contracts, policies, and manufacturer specifications; and the review of dozens of hours of recorded disciplinary hearings. The scientific conclusions were reviewed by a toxicology expert.
As detailed in the report issued today, in January 2019, DOCCS began using a drug test produced by Microgenics to detect the presence of prohibited substances including buprenorphine and synthetic cannabinoids, among others. These drug tests contain written instructions, which require that following a preliminary drug screening test, a “more specific alternative chemical method must be used to obtain a confirmed analytical result.” These more specific alternative tests are typically performed by outside laboratories and can precisely identify and quantify drugs in urine samples, thereby eliminating any false positive preliminary results, which may be caused by cross-reacting substances or other factors.
Prior to the implementation of the Microgenics tests inside DOCCS facilities, the Lieutenant responsible for administering the Incarcerated Individual Drug Testing Program updated the DOCCS drug testing policy to justify forgoing confirmatory testing by alternative methods. This decision, made in collaboration with a sales representative from Microgenics, relied on three-decade old case law based upon another manufacturer’s drug test and methodology, and did not undergo any legal or scientific review. As a result, any positive results obtained using the Microgenics test were “confirmed” only by retesting the same sample using the same Microgenics test. Tests were thus consistently “confirmed,” leaving false positive results undetected.
Immediately after implementation of this new test, complaints of false positive drug tests began to noticeably increase, including from long-incarcerated individuals who had never before tested positive for illegal drugs. Notably, many of the samples that tested positive on the Microgenics tests were obtained from people at times when they were aware they would be tested, such as before a family visitation or during screening for a work release program. Positive tests became so rampant that some incarcerated people reported considering not taking legitimate prescriptions, cough syrup, or even vitamins – potentially jeopardizing their health – out of fear of being unjustly disciplined.
During the eight-month period in which Microgenics drug testing systems were used at DOCCS, 3,018 people tested positive for drug use, with 2,199 of these individuals testing positive for the presence of buprenorphine. Based on results of these preliminary buprenorphine screening tests, DOCCS charged and punished 1,632 people – 1,280 with internal confinement and the remaining 352 with other forms of punishment. The sanctions based on these unreliable and unconfirmed tests also led to missed or delayed parole hearings.
In April 2019, in response to a request from the facility’s Incarcerated Individual Liaison Committee, Attica Correctional Facility requested that a representative from Microgenics visit the facility and inspect its tests and instruments. Representatives of DOCCS and Microgenics subsequently visited the facility, found no errors with the equipment, and advised that the increase in results was because the Microgenics test was more sensitive than prior tests. In June 2019, Prisoners’ Legal Services of New York (PLSNY) complained to DOCCS on behalf of four individuals who claimed they had been disciplined based upon false positives, and PLSNY followed up with a second complaint in July 2019.
In August 2019, DOCCS provided Microgenics with urine samples from six people who had tested positive for buprenorphine to be tested on more specific instruments. The samples were split in half and full sets were sent to two separate labs, both of which confirmed that four of the six were negative for buprenorphine. Microgenics did not advise DOCCS of this result in a timely fashion. Additionally, on August 9, 2019, DOCCS provided a third outside company with six other samples that had tested positive, and was advised on August 12, 2019, that five of the six provided samples were negative for buprenorphine. Despite this information, no immediate action was taken to reverse the disciplinary decisions of the five individuals who were still unjustifiably in confinement and pending sentencing on the disciplinary charges.
Other incarcerated people who sought to challenge their disciplinary charges at administrative hearings were hampered in their attempts as a result of Microgenics representatives providing misleading and inconsistent statements during those proceedings. Reviews of recorded disciplinary hearings revealed these representatives failed to state that positive preliminary test results should be confirmed, wrongfully claimed that the test was 99.9 percent accurate, and stated incorrectly that there was no possibility of cross-reactions with over-the-counter medications.
Beyond the direct implications of the tests on incarcerated New Yorkers, the Inspector General found that the selection of Microgenics as the vendor likely failed to follow State procurement guidelines.
RECOMMENDATIONS OF THE INSPECTOR GENERAL
In light of the termination of the Microgenics contract and the restructuring of the Incarcerated Individual Drug Testing Program that has already taken place, the Inspector General further recommends that DOCCS review its policies to ensure that DOCCS medical and legal staff review and approve any future modifications to the program. DOCCS must also ensure that when incarcerated people test positive for illegal drug use, its medical staff review any drugs prescribed by the New York State Office of Mental Health to those people to ensure the medications are not adversely affecting test results.
The Inspector General also recommends that DOCCS provide comprehensive training to its drug testing and hearing officers on the drug testing policy, tests, and instruments used in the program. In addition, testing and hearing officers should be reminded of the requirement to enter all required drug testing information into DOCCS’ disciplinary tracking database and to consistently consult medical staff on possible cross-reacting drugs.
Additionally, the Inspector General recommends that DOCCS undertake a review of its Contract Procurement Unit processes to ensure compliance with State Finance Law in all procurements. DOCCS’ Counsel’s Office should review and approve all contracts and purchase orders over a designated monetary threshold set by the agency after an internal review is conducted.
The investigation was led by Senior Investigative Counsel George Frany, Deputy Inspector General of the Upstate Regional Office Jim Davis, Chief of Investigations for the Upstate Regional Office Sherry Amarel, Director of Audit for the Upstate Regional Office Dennis Graves and Investigator Carmen Frangella.
The report, Investigation of New York State Department of Corrections and Community Supervision Incarcerated Individual Drug Testing Program, is available online.