CPS Drug Testing in Texas: What DFPS Policy Says

The short answer

DFPS policy lets a caseworker request a drug test for three reasons: a court ordered it, to find out whether a parent or caregiver is actively using substances, or to support treatment and recovery DFPS CPS Handbook §3331. The policy names three kinds of tests: oral fluid, urinalysis, and hair strand DFPS CPS Handbook §3331. Urinalysis is limited to once a week unless a court orders more or DFPS identifies new child safety concerns, and hair strand tests should be at least 105 calendar days apart unless a court orders otherwise DFPS CPS Handbook §3333. If you refuse, the refusal is written down, and a supervisor may recommend legal intervention if there is enough concern for the child's safety DFPS CPS Handbook §3336.

When can CPS ask me to take a drug test?

A caseworker may request a drug test when a court has ordered it, to find out whether a parent or caregiver is actively using substances, or to confirm participation and assist in substance use disorder treatment or long-term recovery DFPS CPS Handbook §3331.

Before asking for a test, the caseworker asks about your current prescriptions and any over-the-counter medicines DFPS CPS Handbook §3331. If the result is positive, the caseworker shares your prescription information with the medical review officer (MRO) listed on the results. The MRO assesses whether a medicine would have caused the positive result DFPS CPS Handbook §3331.

DFPS policy also says that when a caseworker discovers a child safety threat the caseworker believes is related to substance use, the caseworker requires the parent or caregiver to be tested within 48 hours DFPS CPS Handbook §3312.

During an investigation, Texas law requires DFPS, at its first contact with a parent or alleged perpetrator, to tell that person out loud about several rights. One is the right to "refuse to submit to a drug test" Tex. Fam. Code §261.307(a). See Your Rights When Texas CPS Contacts You (Family Code §261.307).

Who can be tested, and what kinds of tests are used?

DFPS policy makes three groups of adults eligible for drug testing DFPS CPS Handbook §3332.1:

• parents and caregivers in open DFPS cases (but not foster or adoptive parents in licensed facilities or homes);
• people being considered as caregivers for a parental child safety placement; and
• kinship family members.

The policy names three test types, each with a different approval level DFPS CPS Handbook §3331:

• Oral fluid: an instant swab test, an instant swab test with lab confirmation, or an instant test with lab confirmation. A caseworker or higher-level staff member can approve it.
• Urinalysis: needs a Form 2054 Service Authorization approved by a supervisor or higher. Caseworkers are not allowed to collect urine from anyone.
• Hair strand: needs a Form 2054 Service Authorization approved by a program director or higher.

Oral fluid and urinalysis tests are not approved for minors DFPS CPS Handbook §3331.

DFPS policy separates a drug screen from a drug test. A drug screen has no lab confirmation, like an instant oral swab, and the policy says screen results are preliminary and not admissible in court DFPS CPS Handbook §3311. A drug test is lab-confirmed, and the policy says it is admissible in court and verified by an MRO DFPS CPS Handbook §3312.

How often can CPS test me?

DFPS policy sets a different frequency rule for each test type DFPS CPS Handbook §3333:

• Oral fluid: may be given multiple times per week, when necessary.
• Urinalysis: no more than once per week, unless a court orders more frequent urinalysis or DFPS identifies new child safety concerns.
• Hair strand: there should be at least 105 calendar days between one hair strand test and the next, unless a court orders otherwise.

So a court order can change the urinalysis limit and the hair strand spacing DFPS CPS Handbook §3333.

Can tests from my treatment program or probation count?

Yes, if certain conditions are met. DFPS may accept results from tests it did not conduct or request only if you have signed a release of confidential information so DFPS can receive them, and one of these is true DFPS CPS Handbook §3332.2:

• you are in substance use disorder treatment, and the provider does random, lab-confirmed testing; or
• an outside entity, such as a probation department or drug court, tests you randomly, and the test is lab-confirmed.

Before DFPS stops its own random testing, the caseworker must make sure the outside testing meets DFPS requirements, such as frequency and direct observation DFPS CPS Handbook §3332.2.

How fast are results checked, and what do they mean?

A caseworker or a supervisor's designee checks results no later than two business days after you give a sample. If results are not ready, they check every business day after that until they are DFPS CPS Handbook §3334. The caseworker records the result in the case file DFPS CPS Handbook §3335.

DFPS policy defines these results DFPS CPS Handbook §3335:

• Negative: the test detected no substance. Each test can only detect the substances it is designed to detect.
• Positive: use of or exposure to a detectable substance happened within the time frame the test can detect. An MRO verifies all non-negative results.
• Positive with a valid prescription: if you have a valid prescription and use it as prescribed by a licensed health care professional, the caseworker records the result this way.
• Presumptive positive: a drug screen sample (saliva or urine) contains substances that met the screening threshold. A presumptive positive oral swab requires confirmation with a lab-verified test.
• Invalid: the lab did not complete the test.
• Rejected: the sample did not meet the first criteria for testing. For example, it was not at body temperature, there was not enough urine, or it was not urine or was mixed with another liquid.
• Diluted: the person drank a large amount of fluids or took a diuretic.

After an invalid, rejected, or diluted result, the caseworker may have you retested, request a different type of test (such as hair strand instead of urinalysis), or rely on credible evidence from observation or from collaterals (other sources of information). For an invalid result, the caseworker may also contact the MRO's office to find out why DFPS CPS Handbook §3335.

If a parent with a positive result is actively parenting a child, the first priority is the child's immediate safety. Next, the caseworker refers the parent to the regional outreach, screening, assessment, and referral (OSAR) center or to a substance use disorder treatment facility DFPS CPS Handbook §3335.

What happens if I refuse a drug test?

If testing is appropriate and a parent or caregiver refuses, the caseworker documents the refusal and consults a supervisor. The supervisor may recommend legal intervention if there is enough concern for a child's safety in the home. If your case is under court jurisdiction, the caseworker notifies the judge and attorneys about the refusal DFPS CPS Handbook §3336.

Texas law requires DFPS to tell you during an investigation about your right to refuse a drug test Tex. Fam. Code §261.307(a). DFPS policy describes what the caseworker does after a refusal DFPS CPS Handbook §3336. If a court has ordered testing, talk with a lawyer before you decide anything.

What the law says

CPS January 2024 Oral Fluids Oral fluid testing may be administered multiple times per week, when necessary. Urinalysis Testing Urinalysis testing occurs no more than once per week unless one of the following applies: - A court orders more frequent urinalysis testing. - DFPS identifies new child safety concerns. Hair Strand Testing There should be at least 105 calendar days between one hair strand test and the next hair strand test unless a court orders otherwise.

In plain words: urinalysis is limited to once a week and hair strand tests should be at least 105 days apart, unless a court orders otherwise (or, for urinalysis, DFPS finds new safety concerns).

CPS January 2024 When drug testing is appropriate, but the parent or caregiver refuses to take a drug test, the caseworker documents the refusal to test in IMPACT. The caseworker consults with the supervisor if a parent or caregiver refuses to take a drug test. The supervisor may recommend legal intervention, if there is sufficient concern for a child’s safety in the home. For cases under court jurisdiction, the caseworker notifies the judge and attorneys about the parent or caregiver’s refusal to test.

In plain words: a refusal is written down, reviewed with a supervisor, and reported to the judge and attorneys if your case is in court.

Questions to ask a lawyer

• Was my result from a drug screen or a lab-confirmed drug test?
• Did the medical review officer get my prescription information?
• Does my testing schedule follow DFPS policy, or does a court order set a different schedule?
• Can my treatment program's or probation's tests be used instead of DFPS testing?
• What could happen in my case if I refuse a test?

Related

• Family-Based Safety Services (FBSS) in Texas: What Families Should Know
• Court-Ordered Services in Texas CPS Cases (Family Code §264.203)
• Your Rights When Texas CPS Contacts You (Family Code §261.307)
• Your Right to a Lawyer in a Texas CPS Case
• The Texas CPS Investigation Process, Step by Step (Family Code §§261.301–261.302)