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.
The proposals gained momentum beginning in in the 2011 session. Three states passed legislation in 2011, four states enacted laws in 2012, two states passed legislation in 2013, and two states has passed legislation in 2014, bringing the total number of states to eleven. In 2013, Kansas enacted legislation to require drug testing for applicants and recipients suspected of using controlled substances. 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 the department to develop a plan for substance abuse testing for all applicants and Oklahoma passed a measure requiring all applicants for TANF to be screened for illegal drug use.
Drug Testing for Individuals Convicted of Drug Felonies
The 1996 welfare law bars states from providing TANF assistance to persons convicted of a felony for possession, use, or distribution of illegal drugs. However, it allows states to opt out of the ban or modify the period for which the ban applies. At least five states modified the ban to require those convicted of drug felony charges to comply with drug testing requirements as a condition of receiving benefits, including Maine, Minnesota, Pennsylvania, Virginia and Wisconsin.
At least 18 states introduced proposals or had carryover bills that would require drug screening or testing for public assistance applicants and/or recipients in 2014.
The Alabama legislature passed SB 63 and Governor Bentley signed it into law on April 10, 2014. The bill requires applicants for Temporary Assistance for Needy Families and certain recipients upon reasonable suspicion of illegal substance use to undergo drug screening, defined as a chemical, biological or physical instrument to detect the presence of drugs. Reasonable suspicion exists for those with a conviction of use or distribution of drugs within five years and for those who test positive to screening. If a person refuses to take the test or delays the test, benefits can be denied. A positive screening results in a warning that benefits may be lost. A subsequent positive screening will result in loss of benefits. The bill specifies that if parents lose benefits, the child(ren) may still receive benefits through a third party.
Mississippi Governor Phil Bryant signed HB 49 into law on March 24, 2014. The bill requires all applicants for Temporary Assistance for Needy Families (TANF) to complete a written questionnaire to determine the likelihood of a substance abuse problem. If the results indicate a likelihood the person has a substance abuse problem, the applicant must submit to a drug test. The test is paid for by the state human services department. If the applicant tests positive, the person may be eligible for benefits if they comply with an approved substance abuse treatment plan and test negative at the end of treatment. If the applicant refuses to participate in a treatment plan, or is otherwise noncompliant with the plan, benefits are terminated. The bill takes effect July 1, 2014.
- At least eleven states have passed legislation regarding drug testing or screening for public assistance applicants or recipients (Alabama, Arizona, Florida, Georgia, Kansas, Mississippi, Missouri, North Carolina, Oklahoma, Tennessee and Utah.) Some apply to all applicants; others include specific language that there is a reason to believe the person is engaging in illegal drug activity or has a substance use disorder; others require a specific screening process.
- Florida's law was halted by a district judge. In February 2013, the 11th Circuit Court of Appeals upheld the lower court's ruling to halt enforcement of the program. The District Court issued a final judgment in December 2013 that permanently stopped enforcement of the law saying it violated constitutional protections against unreasonable searches.
- Tennessee's bill requires the department to develop a plan of suspicion-based testing and report its recommendations to the legislature by January 2014.
- As of July 29, 2014, at least 18 states have proposed legislation or have carryover bills requiring some form of drug testing or screening for public assistance recipients in the 2014 legislative sessions.
At least 29 states have introduced legislative proposals requiring drug testing or screening for public assistance applicants or recipients in 2013.
Alaska, Alabama, Arkansas, Connecticut, Hawaii, Iowa, Illinois, Indiana, Kansas, Kentucky, Massachusetts, Maryland, Maine, Michigan, Mississippi, Montana, North Carolina, North Dakota, New Hampshire, New Jersey, Nevada, New York, Pennsylvania, South Carolina, Texas, Virginia, Vermont, Washington, West Virginia
The Kansas legislature passed SB 149 and Governor Brownback signed the bill into law on April 16, 2013, requiring the Department for Children and Families to establish a drug screening program for applicants and current recipients of cash assistance when reasonable suspicion exists that the person is using controlled substances. Kansas SB 149 requires the Department for Children and Families to establish a drug screening program by January 1, 2014 for applicants and recipients of cash assistance when reasonable suspicion exists that the person is using controlled substances. The suspicion can be based on a person’s demeanor, missed appointments, police records, termination from previous employment due to substance use or prior drug screening records. If the drug test result is positive the person is required to complete a substance abuse treatment program and a job skills program. Those who refuse to take the test or participate in the treatment and job skills program are ineligible for benefits. Those deemed ineligible for these reasons can designate a protective payee to receive benefits on behalf of the child(ren). The bill also makes those convicted of a drug felony after July 1, 2013 ineligible for cash assistance. First time offenders are ineligible for five years; repeat offenders are forever ineligible.
North Carolina passed HB 392 in July 2013, which included a provision to require drug testing of the state’s welfare applicants or recipients for whom the department had reasonable suspicion are engaging in illegal use of controlled substances. The Governor vetoed this provision of the bill in August recommending further study of the issue because existing law already required drug screening and treatment as a condition of receiving benefits. The legislature overrode the veto in September. The county departments of social services are now required to test all applicants or recipients if there is reasonable suspicion of drug use. Those who test positive are denied benefits. The cost of the test and any subsequent treatment is paid by the individual. The department must report to the General Assembly on implementation of the program by April 1, 2014.
At least 28 states put forth proposals requiring drug testing for public assistance applicants or recipients in 2012. Four states, Utah, Georgia, Tennessee and Oklahoma 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. The Georgia General Assembly revised the statute in 2014 with HB 772 to include reasonable suspicion before requiring a drug test. HB 772 also included recipients of Supplemental Nutrition Assistance Program (SNAP), however this was found to violate federal law and the state will not enforce this provision.
Tennessee passed SB 2580 requiring the department of human services to develop a plan to implement a program of suspicion-based drug testing for each TANF applicant. The bill requires the department to consult with experts in identifying appropriate screening tools and assessments. The Department must report to the General Assembly its final plan and recommendations by January 2014.
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.
Map of 2012 State Legislative Proposals
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.
Below is a table listing states with proposals in 2012 and the programs included:
||# of States
|Temporary Assistance to Needy Families (TANF)
||AL, AZ, CA, CO, GA, HI, IA, IL, IN, KS, KY, LA, MD, MI, MN, MS, NE, NJ, NY, OK, SC, SD, TN, UT, VA, WA, WV, WY
|TANF + Supplemental Nutrition Assistance Program only (SNAP, also known as food stamps)
||IA, Il, MI, KY, SC, SD
|TANF + Medicaid
||GA, KY, SC
|TANF + other state or local programs
||GA, MI, MN, MS
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. In February 2013, the 11th Circuit Court of Appeals upheld the lower court's ruling to halt enforcement of the program.
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.