Drug Testing of Welfare Recipients Passes House Committee

May 8, 2012

Will the Sixth Time Be A Charm?

By Laura O’Halloran

After several attempts to create this type of law for Louisiana,  HB 380 just may see success at the end of this legislative session. In previous years, many states including Louisiana have been striving for economic responsibility by focusing on cash assistance being awarded to those who may need help for drug addiction.

State Rep. Sherman Mack (LA-95)

Former Rep. John LaBruzzo of the old LA District 81 (Jefferson Parish) had persevered for five years to make such a bill into law. Now Rep. Sherman Mack (LA-95), along with four other lawmakers, has picked up this torch and has so far matched LaBruzzo’s record of convincing the LA House Health and Welfare Committee to pass it with a vote of 11-5 today.  The goal of this legislation is to help those whose lives are on the proverbial hamster wheel of dependency of both drugs and government assistance.  Rep. Sherman Mack had explained that HB 380 will help them to become “work-ready.”

According to Health and Human Services in 2011, studies of substance abuse among welfare recipients have been difficult to pinpoint and vary tremendously from 4% – 37% nationally.  Several factors contribute to the dynamics of these results, including how each state determines the type and amount of assistance received in order to define a “candidate” that is subject to testing.  Furthermore, defining the actual type of drug abuse and what it includes such as alcoholism and the addiction of prescription drugs.  The testing itself  is a variance as different methods of measuring and data sources are used.

What the Bill Requires:

The bill, if passed, will become law as of January 1, 2013 and will require the state to test up 20 % of recipients randomly with testing standards in compliance with the DHH Office of Behavioral Health. It addresses the recipients of the Family Independence Temporary Assistance Program (FITAP), which is federally funded.  The Digest of HB 380 explains that the proposed law specifies:

…that all FITAP recipients shall sign a written consent form to drug testing and any FITAP recipients that do not sign the consent form shall not be eligible to receive FITAP cash benefits. Proposed law requires DCFS to promulgate rules and adopt regulations regarding the random selection of the 20% of FITAP recipients and the implementation of the drug testing process in the most cost-efficient and cost-effective manner possible. Proposed law provides that if the FITAP Drug Testing and Treatment Fund has deposits sufficient (at least $20,000) to administer testing of more than 20% of adults, the percentage testing will be based on the adequacy of the fund.

What If a Recipient Fails a Drug Test?

Digest of HB 380 also states:

…that the required education and rehabilitation program must be completed within 90 days, pending availability, of a positive drug screen. Also, provides that a participant who fails to complete the required education and rehabilitation program in the allotted time will be suspended from participation in the cash assistance program for a period of one year from the date of the positive drug screen or until the satisfactory completion of the program. Proposed law provides that a participant who is subsequently identified by a verified positive test result as an illegal drug user will be suspended from participation in the cash assistance program for one year from the date of the positive drug screen. Also, requires the suspended participant to reapply for assistance after the suspension period and completion of the reentry program required by law. Proposed law also prohibits the suspension of a participant from the cash assistance program while the participant is taking part in the education and rehabilitation program required to be completed within 90 days of the initial positive test result, or when the participant is actively engaged in treatment that exceeds 90 days, or when an education and rehabilitation program is unavailable to the participant.

Constitutionality

Not only is it difficult to determine the numbers, many have challenged the Constitutionality of this type of legislation as well as the cost.  According to the Office of Assistant Secretary for Planning and Evaluation for Health and Human Services:

Drug testing is a common pre‐employment condition among private employers. Testing by the government has resulted in Constitutional challenges – the most recent one involves a challenge to Florida state law. Courts have upheld the legality of drug testing by government agencies for individuals in sensitive positions and when public safety is involved, as well as for persons involved in accidents on the job and for certain public school students. Testing when there are specific reasons to suspect drug use is also allowed. However, courts have struck down suspicionless drug testing requirements when they have determined there is no real public safety issue.  Michigan’s 1999 program of suspicionless drug testing of TANF recipients was suspended by the courts after operating only a few weeks, and Florida’s recently implemented policy of testing applicants is the subject of a pending challenge. The primary issue in the Florida challenge is whether such testing violates the Constitution’s Fourth Amendment prohibition against unreasonable searches and seizures, which prevents the indiscriminate searching of individuals. Plaintiffs argue that since suspicionless testing involves no reasonable cause to suspect the individuals tested and courts have definitively ruled that drug tests constitute searches, suspicionless testing should not be allowed under the Fourth Amendment. Also at issue in some disputes in this area is the adequacy of due process protections provided to persons for whom a positive drug test results in the suspension of benefits. The Fifth and Fourteenth Amendments require that the government make available safeguards to prevent an individual from being deprived of property through arbitrary processes or results. In the context of drug testing, due process typically includes assuring that drug tests are processed by reputable, certified labs that conform to federal specifications, conducting more accurate confirmatory tests when initial results are positive, and having positive results reviewed by a Medical Review Officer who can determine whether the results may be due to legally obtained prescription drugs or medical conditions that may influence test results.  Drug testing by government agencies as a condition of eligibility for public benefits is an area of active litigation.   Governmental entities interested in conducting drug tests should examine relevant statutory and case law before implementing such requirements.

Ned Barnett of Nevada Conservative dot com argues, “The clear mandate of the government that employees of the government are subject to random drug tests; and that certain private-sector individuals (airline pilots, for instance) are required by law or regulation to undergo random drug tests – as a condition of employment – makes any objection to those on the public dole undergoing such tests a mockery. There is no logic to requiring some people who receive government funds (employees – including those who, if their work was impaired, would threaten no-one) while others see it as a violation of their civil rights no less than absurd.”

…and the Cost?

The report from the Health and Human Services continues:

The estimated costs in [some] States ranged from $92,487, for drug testing 20% of recipients and treating 2% of those tested in Louisiana, to $20 million, for just the testing of all public assistance applicants and recipients in New York. Other estimates include the cost of increasing staff to monitor or administer the tests, as in Maryland and Missouri. Idaho’s estimate includes the cost of making programming changes to the State’s information system. Florida’s law and Alabama’s proposal require the applicant or recipient to pay for the up‐front costs of the drug test, though both would reimburse those who test negative. Most estimates do not incorporate costs relating to increased substance abuse treatment utilization or to increased child welfare interventions.

The actual cost to Louisiana is outlined HERE in the Fiscal Note of the bill.   It also states, “The requirements of this legislation are estimated to increase total State General Fund expenditures by $47,374 for six months in FY 13. Federal Funds expenditures are estimated to decrease by $34,020 due to a projected decrease in FITAP benefits because of refusal of treatment.

Is It Worth It?

Is the cost worth thwarting drug users and potential drug users from receiving public assistance? Will it be worth helping those in need to become “work-ready?” And, will it help keep the Family Independence Temporary Assistance Program TEMPORARY and families INDEPENDENT?  The current status of HB 380 is pending House Floor action, so the full legislature will be considering the issue before the Senate has their turn.

 

 

Laura O’Halloran is a conservative grassroots activist in Livingston Parish, Louisiana.  Since 2006, the heart and soul of her motivation is to promote federal tax reform through the FairTax Act (HR 25/S 13). Since then she has founded the Tea Party of Livingston Parish and in 2011 ran for State Representative with the platform of economic responsibility by ending the state income tax for individuals and businesses. Laura is a beginning blogger and has been with Louisiana Conservative dot com for almost a year. She has helped develop the Conservative Fifty network and is serving as a Regional Director for the Deep South states of LA, MS, AL, GA, and FL.

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