Midwestern states consider testing welfare recipients for drugs; Kansas and Minnesota have laws on books


April 2014 ~ Stateline Midwest 

Since 1996, states have had the authority under federal law to require welfare recipients to undergo drug testing.In recent years, more and more legislatures have given serious consideration to using this authority, including a handful of states in the Midwest. Kansas and Minnesota are among the nine U.S. states with drug-testing laws already in place, and according to the Center for Law and Social Policy, at least 30 states considered bills last year (Illinois, Indiana, Iowa, Michigan and North Dakota among them).

Proponents of drug-testing welfare recipients have cited concerns about benefits being used to buy drugs rather than for housing and other necessities. They also point out that screening enrollees could help identify people in need of substance-abuse treatment.

Critics, however, say such laws are discriminatory and unconstitutional — and that previous programs have seen little or no financial return due to the administrative cost of identifying a small fraction of beneficiaries using drugs.

In 2003, a first-of-its-kind Michigan law, which required drug testing of people receiving cash benefits, was ruled unconstitutional. At issue was the broad testing of all welfare recipients — without cause or suspicion — which was deemed to violate the Fourth Amendment’s provisions on unreasonable search and seizure.

Eight years passed before another state took up the issue. In 2011, Florida legislators enacted a law requiring testing for parents receiving welfare benefits. But that law, too, was struck down on grounds it allowed “warrantless, suspicionless” testing.

Move to ‘suspicion-based’ testing

More-recent measures have been designed to pass constitutional muster, generally by providing a mechanism that tries to identify whom to test.

For example, Kansas lawmakers passed a bill (SB 149) last year that allows for testing of beneficiaries suspected of drug use based on criteria such as demeanor, arrest record and missed appointments. Anyone who tests positive must complete a state-funded drug treatment and job skills program. (Legislators are also subject to random drug testing under SB 149.)

If a parent becomes ineligible (due to multiple failed drug tests or failure to take part in the state-mandated programs), a “protective payee” can be designated to oversee benefits on behalf of the child.

Under Minnesota law, counties have been required since 1997 to test welfare recipients who have been convicted of a drug-related felony in the previous 10 years. But the law wasn’t enforceable because the state, counties and courts had not shared felony-conviction information. A bill passed in 2012, however, required these agencies to share such information. Drug testing could start soon in some Minnesota counties. A bill introduced this year (HF 1987) would give counties the authority to decide whether to test recipients instead of making it mandatory.

A drug-testing bill proposed this year in Indiana (HB 1351) passed both chambers, but failed to reach the governor’s desk before the end of this year’s legislative session. The measure would have required anyone convicted of a controlled-substance offense to pass a drug test in order to receive cash welfare benefits.
Indiana beneficiaries testing positive would have been given a list of drug-abuse programs, and those receiving treatment would have continued to get their benefits. If a second test came up positive, though, the recipient would have lost benefits for three months.

In Michigan, lawmakers in both chambers have approved slightly different versions of HB 4118, which would create a “suspicion-based” testing program for Family Independence Program enrollees. Under the legislation, at least three counties would set up pilot programs in which all applicants would complete a substance-abuse screening. People determined to be at high risk for substance abuse would be drug tested.

Article written by Kate Tormey, staff liaison for the Midwestern Legislative Conference Health & Human Services Committee. The committee's co-chairs are Iowa Rep. Joel Fry and Minnesota Rep. Kathy Sheran.