- - Tuesday, March 11, 2014

From written tests designed to flag drug users to singling out people with recent drug convictions, state lawmakers across the country are pursuing novel strategies to deny welfare benefits to drug users without running afoul of a recent federal court ruling.

In December, a federal judge in Florida struck down the state’s drug-test requirement. But almost half the states are considering drug-testing bills designed to withstand legal scrutiny. In Alabama, Indiana and Mississippi, such measures already have advanced by overwhelming majorities.

The movement is the latest iteration of a welfare drug-testing campaign that began gaining momentum about five years ago. Some lawmakers support the tests to help drug users on public assistance to get help. Others back them to make sure public dollars aren’t subsidizing drug habits, or say it’s simply about saving money.

“Some states have gotten smarter,” said Jason Williamson, a staff attorney with the American Civil Liberties Union, which has challenged drug-testing laws. “There are certainly ways that a state could formulate one of these programs that would make it very difficult to challenge.”

Drug testing for welfare benefits has been a subject of debate since Congress overhauled welfare in 1996. As part of those changes, states were allowed to drug test applicants for the Temporary Assistance for Needy Families (TANF) program, commonly known as welfare. Other safety-net programs like jobless benefits and food stamps have different drug-testing rules, based on federal law and policies in individual states where the programs are administered.

Until five years ago, few if any states drug tested for TANF. Since then, however, at least nine have passed some kind of drug testing requirements for the program, according to the National Conference of State Legislatures. Kansas and North Carolina did so last year.

Even as interest in drug testing has ebbed and flowed, states have recognized there were some limits to how many welfare applicants they could screen, and for what reasons. A 2003 ruling in Michigan first established those limits, striking down that state’s law on blanket-testing applicants, which was the first of its kind.

Almost a decade later, state lawmakers returned to the issue and began proposing tests again. The Florida law, supported by Republican Gov. Rick Scott and approved overwhelmingly by the state legislature in 2011, was a direct challenge to the Michigan ruling and was the first such policy enacted since that decision.

But proposals elsewhere have been more cautious, as lawmakers fear costly lawsuits they seemed likely to lose. At least one state, Georgia, scuttled a similar policy because of the Florida ruling, although new, narrower drug-testing bills emerged there this year.

Other states also have tried to craft laws that will be immune to lawsuits. A measure in Alabama, which has already passed the state Senate, would require anyone convicted of a drug offense in the last five years to undergo — and pay for — a drug test as part of a welfare application. The cost of the test would be reimbursed if the applicant passed.

Rep. Kerry Rich, a Republican who sponsored the Alabama bill, said it was written narrowly to avoid a legal challenge. “If I had my way I would do a random drug test,” he said. “But it’s been pretty well-established you can’t do that.”

Other measures would require applicants to take personality tests designed to detect likely drug users. The Mississippi House recently passed such a measure, as did the Indiana House.

Under Indiana’s original bill, anyone whose test raised “red flags” would be placed in a pool with other suspicious applicants, and half those applicants would then be subject to drug testing. But that proposal has already been weakened in the Senate, where lawmakers changed the bill so it would apply only to those with recent drug convictions.

Indiana Rep. Jud McMillin, a Republican who authored the original version, said he may not support the new one. Republicans in Indiana control both chambers of the legislature. “I am absolutely not interested in passing a bill that doesn’t do anything just so we can tell people that we passed a bill to drug test people for their welfare benefits,” he said.

Beyond figuring out how to craft drug-testing requirements, there is a broader question of whether the denial of welfare benefits to drug users is a good idea.

“There are constitutional problems with this, but there are also some serious public policy problems,” said the ACLU’s Mr. Williamson. “All of these programs are making unfair and unsupported assumptions about poor people.”

Stateline is a nonpartisan, nonprofit news service of the Pew Charitable Trusts that provides daily reporting and analysis on trends in state policy. A longer version of this story can be found at https://www.pewstates.org.

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