Introduction. Historical Summary of Drug Testing Welfare Recipients in Michigan

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1 Introduction The Michigan Legislature has recently passed legislation regarding lifetime limits for the Family Independence Program (FIP). Public Act 131 of 2011 includes a provision, MCL l, requiring the Department of Human Services (DHS) to review the feasibility of a substance abuse testing program within the FIP and report the findings of the review and methods and costs of substance abuse testing to the legislature. Historical Summary of Drug Testing Welfare Recipients in Michigan In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) and replaced the previous welfare entitlement program with the Temporary Assistance for Needy families (TANF) block grant. Section 902 of the PRWORA authorizes, but does not mandate, states to test TANF applicants and recipients for use of controlled substances and sanction those recipients who test positive for use of controlled substances. 21 U.S.C. 862(b). In 1999, in response to the enactment of PRWORA, Michigan enacted Public Acts 9 and 17 of 1999, which permitted the Family Independence Program (FIP) to condition eligibility for FIP assistance on the recipients being tested for substance abuse. In accordance with the law, the Family Independence Agency (now known as the Department of Human Services or DHS) implemented a pilot program for drug testing of FIP recipients in at least three counties, with the intent to implement the pilot statewide by April, The pilot programs ran from October 1, 1999 until November 10, As a result of the pilot program, a total of 435 applicants were tested for the presence of marijuana, cocaine, opiates, amphetamines, and phencyclidine. Forty-five or 10.3% tested positive for drug use. In September, 1999, the ACLU filed a lawsuit, Marchwinski v. Howard, 113 F. Supp. 2d 1134, 1135 (E.D. Mich. 2000), in the U.S. District Court for the Eastern District of Michigan against the DHS alleging that the drug testing law violated the Fourth Amendment rights of recipients because the testing was being conducted without individualized suspicion. The court determined that a public safety special need was the only interest that would justify a suspicionless search. The court further held that the State s argument that Michigan s interest in the prevention of child abuse and neglect was not a sufficient public safety concern. Consequently, the court granted a preliminary injunction and ruled that the State had not demonstrated a special need that justified departure from the ordinary Fourth Amendment requirement of individualized suspicion and must cease suspicionless drug testing. 1

2 In October, 2002, a panel of the Sixth Circuit Court of Appeals reversed the decision of the district court and held that implementation of the Michigan program to test applicants for drug use was constitutional as a condition for receipt of FIP assistance. However, the ACLU filed a request for a rehearing en banc before the entire Sixth Circuit bench, which was granted. In April, 2003, the en banc court affirmed the decision of the district court by an equally divided vote. Following the Sixth Circuit decision, on December 3, 2003, both parties in the aforementioned case stipulated to a consent order. The parties agreed that the preliminary injunction issued in September, 2000, would remain in full force until either of the following occurred: a report evaluating future pilot programs of suspicion-based drug testing of FIP applicants and recipients is filed with the Michigan Legislature, or January 1, No pilot or statewide program was ever officially implemented. Accordingly, the stipulation and consent order expired on January 1, FIP and Job Readiness The FIP program is designed to assist families in achieving independence and self-sufficiency. Specifically, MCL a reads in part as follows: (1) The department shall establish and administer the family independence program to provide assistance to families who are making efforts to achieve independence. (2) The department shall administer the family independence program to accomplish all of the following: (a) Provide financial support to eligible families while they pursue selfimprovement activities and engage in efforts to become financially independent. (b) Ensure that recipients who are minor parents live in adult-supervised households in order to reduce long-term dependency on financial assistance. (c) Assist families in determining and overcoming the barriers preventing them from achieving financial independence. (d) Ensure that families pursue other sources of support available to them. Since many employers now require applicants to submit to and pass a drug test before an offer of employment is made, using illegal drugs would be a barrier to employment. Additionally, substance abuse problems would be a barrier to maintaining employment and achieving self-sufficiency. DHS is redesigning the program that assists FIP recipients with finding and maintaining employment. The focus 2

3 of the redesign is shifting away from mere job placement towards maintaining employment and a significant facet of this is job readiness. Drug Testing and Other States At least 36 states are proposing laws that would require applicants for and recipients of a variety of public aid programs to undergo drug testing in which they would have to provide a urine sample. 1 Several states, including Arizona, Florida, Indiana and Missouri, have already passed such laws. 2 Most recently, Florida and Missouri have enacted drug testing laws, although each State took a different approach. Florida s law became effective on July 1, 2011 and requires all welfare applicants to submit to and pass suspicionless drug testing as condition of eligibility under Florida s TANF program. On October 24, 2011 a federal judge issued a temporary injunction which prevents the Florida Department of Children and Families from further testing. Missouri s law became effective on August 28, 2011 and requires the Department of Social Services to develop a program to screen each applicant or recipient of TANF benefits, and then drug test each one whom the department has reasonable cause to believe, based on the screening, engages in illegal use of controlled substances. The Missouri legislation can be accessed at To date, Missouri s law has not received any legal challenges. Additionally, Missouri officials stated that Missouri s law was based on the 2009 legislation enacted in Arizona, which is also based on reasonable cause and has not been challenged in court. In October, 2011, the U.S. Department of Health and Human Services published an issue brief on drug testing welfare recipients, including an in depth examination of recent State and federal legislative proposals requiring drug testing as a condition of TANF program eligibility. The report can be accessed at 1 Matthew Cardinale, U.S.: States Seek Drug Tests for Welfare Recipients, 11/30/ NCSL, Drug Testing and Public Assistance, October 7, Indiana was listed in the summary report as having proposed legislation, but it has passed since this summary was published. 3

4 Methods A. Drug Screening DHS would develop a program to screen all FIP applicants and recipients for illegal drug use. Based on the results of the drug screen, if DHS has reasonable suspicion that illegal drugs are being used, the applicant or recipient would be required to undergo a drug test before cash assistance may be provided. A variety of substance abuse screening options are available, ranging from professional screening tools to simple questions that would be placed on the application for assistance. The applicant would be required to affirm the veracity, sign and date any application for assistance with DHS. Providing false information on the application or in the eligibility interview may result in prosecution for perjury or fraud and benefits may be denied. B. Drug Testing The actual test for illegal controlled substances would not be required until DHS had reasonable suspicion based on the drug screening or information provided by law enforcement or otherwise, that the applicant or recipient was using illegal drugs. Because the test would be based on reasonable suspicion, the applicant could bear the cost of the test. If the test is negative, the applicant could be reimbursed by DHS. According to the October 2011 US Department of Health and Human Services issue brief (ASPE issue brief) on drug testing welfare recipients, the most frequently used and least expensive form of drug testing among the states is a urine drug test. 3 The ASPE issue brief elaborates that urine testing is more favorable than hair testing because the latter more frequently results in positive results because of external exposure to drugs or chemicals; and urine tests generally detect marijuana use within the past week and cocaine, heroin and other hard drugs within the past two days. C. Illegal drug use If the FIP applicant or recipient tests positive for illegal drug use, the FIP applicant would be denied eligibility for FIP assistance or the assistance would be terminated. The applicant or recipient would be prohibited from re-applying for FIP assistance for a designated period of time. If the applicant or recipient demonstrates they have successfully completed a substance abuse treatment program, they could reapply for benefits and they would be required to pass a drug test. 3 ASPE Issue Brief, Drug Testing Welfare Recipients: Recent Proposals and Continuing Controversies, October

5 If the applicant or recipient requests a referral for assistance with his or her illegal drug use, DHS would make referrals as appropriate, but the cost of any treatment or assistance provided would be the responsibility of the applicant or recipient. Costs The estimated cost of drug testing TANF applicants and recipients varies based on the actual testing that is administered, who is administering the test, the types of drugs being screened for and whether a secondary test is used when a positive result is returned. The ASPE issue brief surveyed twelve states and their estimated costs for drug testing. Among the twelve states, estimated costs ranged from $92,487 to $20 million. Even though none of these estimates showed a net savings, some of the states estimating high costs, such as New York, included drug treatment as part of their cost. A large determinant of where a state would fall on the spectrum of estimates is conditioned on the proposed number of individuals who would be tested, type of drug testing chosen and the range of activities for which costs are estimated. See The cost of drug testing FIP applicants or recipients based on reasonable suspicion of illegal drug use would depend on multiple factors and how DHS would implement the program. For example, if drug screening questions were added to the application in lieu of utilizing a professional drug screening tool, the cost to DHS to screen would be minimal and related to modifying the application itself. If a professional drug screening tool was the preferred route, costs would involve including staff training and certification as well as staff needed to administer the tool to FIP applicants and recipients. These costs would be ongoing. The ASPE issue brief noted that none of the State cost estimates identified described anticipated unit costs of drug testing programs. However, an article is cited which states, testing an applicant or employee ranges from $25 to $44 for urinalysis... [while] hair follicle testing costs $75 to $150 per test. 4 Additionally, the ASPE issue brief cites various news reports regarding the implementation of Florida s new drug testing policy which provide an estimate of $30 per TANF recipient for the cost of the drug test. However, this figure may not include costs for staff and other program costs. 4 Overman, S. (2005). Debating Drug Test ROI. Staffing Management 1(3). ( 5

6 Conclusion Drug testing of FIP applicants and recipients is feasible at this time. Based on the methods and costs reviewed, DHS would recommend a pilot program for suspicion based drug testing of FIP applicants and recipients using a drug screening process. Additionally, DHS recommends the involvement of drug court treatment professionals (specifically, the Michigan Association of Drug Court Professionals) and law enforcement in formulating a proposal for drug testing FIP applicants and recipients. Finally, one of the primary goals of a suspicion based drug testing program for FIP families should be removing any barriers associated with job readiness and family self-sufficiency. 6