By CBS4 Political Specialist Shaun Boyd

DENVER (CBS4) – Some Colorado state lawmakers are calling for an audit of Colorado’s COVID testing program after learning the Colorado Department of Public Health and Environment used unauthorized tests in hundreds of nursing homes.

The Legislative Audit Committee took up the matter Monday almost a year after CDPHE signed an $89 million contract with a testing company called Curative. The contract was for tests only approved for people with symptoms.

The health department gave them to nursing homes for free and told them to use the tests off-label and on asymptomatic people too.

(credit: CBS)

Dr. Gregory Gahm, Medical Director for the largest chain of nursing homes in the state, says he and his colleagues repeatedly warned state health officials about false results.

“Every single time it was Curative positive, one sent to another lab was negative.”

Republican state Sen. Rob Woodward is asking for the audit.

“It’s not fair that 1,100 nursing home patients died last fall during time this contract in place.”

Woodward is concerned the contract was based on connections not competency. Emails show the governor’s top advisor for COVID response was introduced to Curative after a weekend get together with an investor in the company, who is also a big donor of the governor’s.

Sarah Tuneberg, the then-head of COVID testing for the state, is copied on the emails, but she says that’s not why she chose the company.

“They would drop ship test kits to locations, they would be used in that location, they would print out a label and send back to Curative overnight.”

Tuneberg defended the tests accuracy. The FDA had a different take. In January, it issued a warning saying using its tests off-label, as Colorado was, risked false negatives.

A few weeks later the state pulled the plug on the contract. Woodward says the damage was done.

“I’m worried some things that we as a state could have done better. So that’s all I’m asking this committee to take a look.”

Rep. Dafna Michaelson Jenet, Chair of the Audit Committee, says investigating a COVID testing program isn’t the role of the auditor.

“When we do audits, doing audits of departments that are ongoing, that we are monitoring spending operations, and this is a unique stand-alone global pandemic situation.”

Michaelson Jenet says she wants to call a public hearing where lawmakers can question health officials instead. Woodward, a Republican, needs a Democrat for his audit request to pass.

Democratic Sen. Julie Gonzalez, who lost three family members to COVID, says she wants answers, but wants to take a closer look at all the evidence before endorsing an audit. The committee postponed a vote until next month.

Curative released the following statement to CBS4 on Tuesday:

While Curative is disappointed with the January 21, 2021, decision by the Colorado Department of Public Health and Environment to discontinue working with Curative to provide testing across Colorado and at long term care facilities in the state, we continue to be confident in our data, our test, and in the services we provided to patients across the state.

The Curative test was validated and offered under an Emergency Use Authorization, the test was labeled with specific warnings, precautions, and limitations. The test performance and labeling, however, never changed, nor did the company observe any changes in test performance. We remain confident in our data, the test, and in the service we provided to Coloradoans. Should there be any additional questions outstanding about the services we provided, Curative will be a cooperative partner.

Shaun Boyd