Drug Testing and Public Assistance

Updated May 16, 2012

Quick Fact: As of May 16, 2012, at least 28  states put forth proposals in 2012 to require drug testing or screening for public assistance applicants or recipients. 

Three states passed legislation in 2011 and four states have passed legislation in 2012, bringing the total number of states to seven. In 2012, Utah passed legislation requiring applicants to complete a written questionnaire screening for drug use and Georgia passed legislation requiring drug tests for all applicants for Temporary Assistance for Needy Families. Tennessee approved a bill to require substance abuse testing for all applicants and Oklahoma passed a measure requiring all applicants for TANF to be screened for illegal drug use.

Map of 2012 State Legislative Proposals

History and Overview

States have proposed drug testing of applicants and recipients of public welfare benefits since federal welfare reform in 1996. The federal rules permit drug testing as part of the Temporary Assistance for Needy Families block grant. In recent years, many states have proposed some form of drug testing or screening for applicants.  In 2009, over 20 states proposed legislation that would require drug testing as a condition of eligibility for public assistance programs. In 2010 at least 12 states had similar proposals. None of these proposals became law because most of the legislation was focused on “suspicionless” or “random” drug testing, which is at odds with a 2003 Michigan Court of Appeals case. Marchwinski v. Howard ruled that subjecting every welfare applicant in Michigan to a drug test without reason to believe that drugs were being used, was unconstitutional. 

2011 Legislation

At least 36 states put forth proposals in 2011 around drug testing of welfare (Temporary Assistance to Needy Families - TANF) and food stamp (Supplemental Nutrition Assistance Program - SNAP) recipients. Three states enacted legislation:

Arizona established a temporary requirement for fiscal year 2011-2012 requiring the department to screen and test applicants who they have a reason to believe are engaging in illegal substance use (S.1620). This bill was signed by the Governor on April 6, 2011.

Florida passed a law (HB 353) requiring all applicants for TANF benefits to be tested. Applicants must be notified of the drug testing requirement at the time of application, and are required to pay for the test.  If they test negative the applicant will be reimbursed for the cost by adding the amount to their benefit check. If an applicant tests positive the applicant is ineligible for benefits for one year, but can reapply in 6 months if he/she completes an approved substance abuse treatment program. A parent's positive test result does not affect the child's eligibility for benefits; however, any benefits received must be disbursed through a protective payee who must also pass a drug test.  The Governor signed the bill on May 31, 2011 and went into effect on July 1, 2011. Florida’s law is the first since Michigan’s pilot program was challenged in the courts and ruled unconstitutional in 2003. The American Civil Liberties Union filed a lawsuit to stop the bill from being implemented. A  federal judge ordered a temporary injunction and Governor Scott has appealed the decision.  The issue is still pending a final court ruling. 

Missouri passed HB 73 requiring the department to require a urine drug test for all applicants and recipients of TANF for whom they have reasonable cause to believe based on screening that they are engaged in illegal use. If the individual tests positive or refuses to take the test, they are ineligible for benefits for three years unless they enter and complete a substance abuse treatment program, in which case they can reapply in six months. Caseworkers are also required to report suspected child abuse as a result of drug abuse if caseworker knows they tested positive or refused to test. Governor Nixon signed the bill into law on July 12, 2011 and took effect August 28, 2011.

2012 Legislation

As of May 4, 2012, at least 28 states put forth proposals requiring drug testing for public assistance applicants or recipients, of which 14 are still pending.  Three states, Utah, Georgia and Tennessee passed legislation.

Utah passed HB 155 requiring individuals applying for cash assistance to complete a written questionnaire screening for illegal drug use. If there is reason to believe the person has a substance use disorder or is engaging in illegal drug activity, the applicant must take a drug test. If the test is positive, the individual is required to complete treatment and remain drug free in order to receive benefits. The state will terminate benefits for an applicant who refuses to take the test. Governor Herbert signed the bill into law on March 23, 2012.

Georgia passed HB 861 requiring drug tests for all individuals applying for Temporary Assistance for Needy Families benefits. Applicants must be notified of the drug testing requirement at the time of application, and are required to pay for the test.  If an applicant tests positive the person is ineligible for benefits for one month and until he or she tests negative. A parent's positive test result does not affect the child's eligibility for benefits; however, any benefits received must be disbursed through a protective payee who must also pass a drug test.  Governor Deal signed the bill on April 16, 2012 and goes into effect July 1, 2012.

Tennessee passed SB 2580 requiring a substance abuse test of all applicants for welfare benefits. Applicants are required to pay for the test. If the test is positive a confirmation test is required, which is paid for by the lab. Applicants with a confirmed positive test result are ineligible for benefits for one year. Individuals can reapply for benefits after six months if they complete a substance abuse treatment program and have two negative drug tests. A parent's positive test result does not affect the child's eligibility for benefits; however, any benefits received must be disbursed through a protective payee.

Oklahoma passed HB 2388 requiring the Department of Human Services to screen all adult applicants for Temporary Assistance for Needy Families (TANF) to determine if they are engaged in illegal use of controlled substances. If so, the applicant's request for benefits shall be denied. The bill was signed by Governor Fallin on May 16, 2012 and goes into effect November 1, 2012.

Programs Included

Several states include other assistance programs, such as medical assistance, Supplemental Nutrition Assistance Program (SNAP, also formerly known as food stamps), child care, and other state-funded programs.  At least 12 states include language requiring testing only if there is reasonable cause to believe the person is using illegal substances.  In most cases, if the applicant or recipient tests positive they are ineligible for benefits for a specified period of time or until they complete a substance abuse treatment program.  The requirements often do not affect the eligiblity of a child in a home where the parent tests positive, however, a family member or other designated person who has also passed a drug test is required to be the protective payee for the child's benefits.