Drug detection patch draws challenge

Kim Smith

Wednesday, Sept. 1, 1999 | 11:32 a.m.

A relatively new drug test called the sweat patch goes on trial soon in Las Vegas as the result of a challenge by a federal public defender.

U.S. Public Defender Franny Forsman has filed several briefs on behalf of federal convicts who are having their probations revoked in part because of sweat patch results.

Because a hearing on the issue has yet to be scheduled by U.S. District Judge Philip Pro, Forsman declined comment.

According to court documents, however, Forsman believes not enough testing has been performed.

The patch, similar in appearance to nicotine patches worn by people trying to stop smoking, collects the components of sweat that do not evaporate, specifically, trace elements from consumed drugs.

Opponents of the sweat patch claim even residual drugs on clothing can taint sweat patch results; proponents tout the patch's reliability and the inability of drug users to influence results.

Two California companies, Sudormed Inc. and PharmChem Laboratories, developed the patch in the early 1990s because of the ease with which drug users were getting around urine analysis.

The patch was first tested by California probationers on a trial basis in 1992 and, impressed with the results, federal officials in Las Vegas began using them in 1997.

Since that time, hundreds of federal convicts on probation have been required to wear the patch for various lengths of time, depending upon their probation officers' wishes. When that time period is up, the patch is removed and sent to PharmChem for testing.

While Sudormed recommends the patch be worn at least 24 hours, positive test results can appear in as early as two hours.

Forsman points out that federal law states no drug test can be used to revoke probation unless it is the equivalent of drug tests used for federal employees. There is no indication the sweat patch has been declared the equivalent by the Department of Health and Human Services, Forsman wrote in a recent brief.

"It is unlikely that the Secretary of Health and Human Services would permit a lesser standard for reliability and accuracy of drug tests when a person's liberty is at stake than in the employment context," Forsman wrote.

According to court documents recently filed by Forsman, a recent U.S. Naval Research Laboratory study shows several problems with the patch. Among them:

* The Sudormed sweat patch is not impermeable. Minute amounts of drug placed on the outside of the patch while any moisture is present will result in a positive patch result.

* Minute amounts of drug on the skin cannot be removed by isopropyl alcohol (which is rubbed on the skin before the patch is applied) and will result in a positive patch result if the patch is placed on the affected skin.

* Minute amounts of drugs are present in the environment, on money, in clothing and other surfaces. If a patch wearer is exposed under certain conditions to drugs in the environment, a positive patch result may occur without drugs being ingested.

Assistant U.S. Attorney Joe Sullivan noted that no negative studies about the sweat patch have been published yet.

"Based on what we've seen to date, we believe the sweat patch is reliable," Sullivan said. "But we want to get to the bottom of this. We would never want to take away somebody's liberties without considering every piece of evidence out there."

John Gonska, supervising U.S. Probation Officer in Nevada, said the sweat patch is a far better drug-testing method than urine analysis.

"It's no secret that people are able to beat urine analysis," Gonska said.

Most probationers are tested four or five times a month, which leaves plenty of time for them to use drugs and plenty of time for the drugs to work themselves out of their system, Gonska said. Drug users can also flush out their systems by drinking copious amounts of water, they can purposely contaminate their urine and they can submit someone else's urine.

"The drug population is the most sophisticated, manipulative population of probationers," Gonska said.

One sweat patch wearer, who asked that she not be identified, agreed. She said she has heard all of the stories from those who continue using drugs.

The 38-year-old Las Vegas resident served 24 months in prison on a methamphetamine charge and six months in a halfway house. She has been wearing the patch since May and has nothing but positive comments to make about it.

"I think the patch is a reward for those people who are strong in their 12-step program, but are still required to test for drugs. I also think it's a deterrent for those who still have strong urges because they can't take it off," the woman said.

Whenever patch wearers takes off the patch, probation officers automatically count it as a "dirty" or positive drug test, she explained.

The woman said when she was first released from prison she had a difficult time adjusting to the probation office's color-coded urine analysis program.

She was assigned a color and every night she was required to call the probation office to see if her color was up to be tested. Since she works evenings, it was difficult for her make the calls and to make her appointments the next morning.

"The sweat patch makes my life much easier, because I only have to have it changed every two weeks," the woman said. "I would like to see more people on them. It would save the government a lot of money and it would save a lot of people from having to go back to prison. Prisons are already crowded with people who don't belong, with people who need rehabilitation."

Many people who still submit urine samples have their schedules down pat and know when it's safe to use drugs, the woman said.

"They can get away with using with the UAs. It's very, very easy, but I don't think there's a way to get around the sweat patch," the woman said.

Between March and June, 2.9 percent of the probationers who submitted urine samples were caught doing drugs, Gonska said. During the same period, 17.5 percent of sweat patch wearers tested positive for drugs.

Each urine analysis test costs between $7 and $22 depending upon the number of drugs tested for, U.S. Probation Officer Mike Severance said. Sweat patch tests cost $20. The patch itself is $5.

Gonska and Severance dismiss opponents' contentions that brushing up against a drug users' clothing or draperies can result in false positive results.

"If that's true, then isn't it ironic that they only test positive for their drug of choice" instead of the multitude of other drugs out there, Gonska said.

The sweat patch wearer agreed.

"They would have to lay on a carpet a pretty long time for the drugs to get into their skin and secrete out onto the patch, and that carpet would have to be so incredibly saturated with the drug that I just don't buy it," she said.

"I've heard people saying that they tested positive because they walked into a room with second-hand smoke. I think that's a cop-out. That's a cop-out from people who have the urge and they want an excuse," she said.

And while it's true the U.S. Probation Office has a three-year contract with Sudormed and PharmChem, the Las Vegas office does not have to use the sweat patch, Gonska said. Nor would the office if there was any evidence it didn't work.

"It would be immoral and unethical of us to be in cahoots with them," Gonska said.

They are open to any "credible" research that detracts from the sweat patch, Severance said.

"But everything we've seen, from the pilot projects to our in-house studies to the FDA studies leans toward these being credible devices," Severance said.

At the same time, however, the U.S. Probation Office is not going to do away with urine analysis or ignore other drug testing options, such as saliva and hair follicle testing.

"No drug test is a panacea, a cure-all. We're going to be looking at saliva tests and hair tests, too," Gonska said. "We have to have a multi-faceted approach to drug testing."

The idea isn't to punish those who continue to use drugs, either, Severance and Gonska stressed.

"We're trying to get as many drug detection tools as possible so we can send a message to drug users that we can't be beat," Gonska said. "We want to get them on the road to recovery."

Jim Baer is a U.S. probation officer in the Central District of California, where sweat patches were first tested. The current controversy over the patches is not unlike the controversy that surrounded urine analysis in its infancy, he said.

Urine analysis survived and sweat patches probably will too, especially after further testing, Baer said.

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