Drug testing: Do as I say, not as I do
by The Statehouse File
Lawmakers in Indiana and across the nation are studying whether to require drug tests of welfare and food stamp recipients, even though there are questions about the constitutionality of the move.
This year, legislators in at least 25 states proposed bills to implement some sort of drug testing system for a variety of welfare programs, most commonly Temporary Assistance for Needy Families but also Medicaid and the Supplemental Nutrition Assistance program, which used to be called food stamps.
"Public welfare programs are definitely being looked at more closely," said Rochelle Finzel, a researcher for the National Conference of State Legislatures. "Lawmakers want to make sure those benefits are being used appropriately."
Some of those lawmakers see drug testing as another of the activities that are required for the privilege of receiving benefits, similar to the work participation requirements for many programs, Finzel said.
"It's about making sure the dollars are used effectively," she said.
But it's not clear the courts will agree.
Laws that drug test welfare recipients can lead to a legal quagmire and have involved lengthy legal court battles. Proponents of drug testing have yet to successfully defend a law.
The first such case came in Michigan, where the state implemented drug tests for some welfare benefits. The American Civil Liberties Union sued and a Michigan appeals court ruled the tests violated the U.S. Constitution's fourth amendment.
But in recent months, officials at the Michigan Department of Human Services have taken steps to bring the testing back using a different system.
And in Florida, Gov. Rick Scott last year suspended a law that required drug testing of some welfare recipients after the ACLU filed a lawsuit there – despite claims that it saved the state $1.8 million while in place.
In Indiana, State Rep. Jud McMillin, R-Brookville, proposed a drug-testing bill for Hoosiers who receive Temporary Assistance to Needy Families, a federally-funded welfare program known as TANF.
The bill would have implemented a two-year pilot program to require drug tests in three counties. At its completion, state officials would assess the effectiveness of the program.
The bill did not specify the counties that would have been included but the goal was to test about 2,000 recipients. The legislation died after it was amended to require lawmakers to undergo drug tests as well, but lawmakers sent the issue to a summer committee for further study.
Although McMillin's bill was similar to others proposed in state legislatures across the country, its impact would have been fairly small in scale.
In Iowa, Illinois, Michigan, Kentucky, South Carolina and South Dakota, the proposed bills would have required drug testing not only of those receiving TANF, but also food stamps. Bills in Georgia, Kentucky and South Carolina would have drug tested recipients of TANF and Medicaid.
Last month, Georgia Gov. Nathan Deal signed a drug -esting bill into law.
"This program is intended as a safety net, and this requirement guarantees that the benefits are used for their intended purposes — to care for children and assist with job preparation," Deal said.
But Liz Schott, a senior fellow at the Center on Budget and Policy Priorities, said the way states are currently going about the issue of drug testing welfare recipients is wrong. She thinks more focus should be put on treatment, rather than testing.
"It's not that drug testing never has a role," Schott said. "But it doesn't have a universal role as the first place to start. It's not legal, it's not smart policy and it's not cost effective. And, it doesn't do anything to address the problem.
"It just makes it all about testing, not about treatment and responding to people who are actually in need of some attention on their substance abuse issues," said Schott.
In Indiana, McMillin said his legislation aims to avoid constitutional issues by creating a two-tiered system. Essentially, individuals who apply to receive TANF benefits can elect whether to take the drug test. If they take the test and pass, they will receive benefits. However, McMillin said, refusal to take the test will be viewed as reasonable suspicion and those applicants will then be required to take the test anyway.
Schott is skeptical of this reasoning. She said it's up to a court to decide what's "reasonable suspicion" and therefore constitutional.
"They arbitrarily identify things as reasonable suspicion, but that, in my view, wouldn't solve the problem," Schott said.
Nevertheless, McMillin intends to introduce the bill — little changed from last year — when the session starts in January.
"Quite frankly," he said, "it's one of my top priorities."
Tim Grimes is a reporter for TheStatehouseFile.com, a news service powered by Franklin College journalism students and faculty.
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