TN welfare drug test plan faces hurdles

10:48 AM, Apr 29, 2013   |    comments
Sen. Stacey Campfield
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By Heidi Hall, The Tennessean

Tennessee is plunging ahead with a plan to drug-test some welfare applicants even though a Florida judge stopped a similar program over constitutional issues and Arizona authorities caught only one welfare-receiving drug abuser in three years.

Reports from the Tennessee agency charged with implementing the drug-testing law show the state may try to catch drug-using applicants with a diagnostic quiz that includes questions such as "Have you abused more than one drug at a time?" and "Do you ever feel bad about your drug abuse?" If they failed the questionnaire, they would face urine screenings.

Tennessee passed its law last year and gave the Department of Human Services until July 1, 2014, to implement it. It's taking cues from Arizona's program, which went into effect in 2009.

"I don't rule out the possibility that we've captured two idiots," said Arizona state Rep. John Kavanagh, a former police detective who sponsored the legislation there. "If I was going to do it again, I would attempt to do a cross-check of Temporary Assistance for Needy Families rolls and records of drug arrests, but based on our budget, I don't want to create that expense.

"I wish the Tennessee legislature all the luck. If they are able to crack through the judicial barriers, we will benefit from their experience."

Tennessee's sponsor for the drug law, Sen. Stacey Campfield, R-Knoxville, said he's not discouraged by what's happening in other states, and he would consider the law successful if it drove down the number of applicants simply because they knew they would be tested.

Groups who support drug-testing laws nationwide argue that the Fourth Amendment prohibition on searches without reasonable cause shouldn't apply in the case of welfare applicants. Rachel Sheffield, a policy analyst for The Heritage Foundation, a right-leaning think tank in Washington, said it's fair to require certain behavior from people who receive taxpayer assistance.

"They have attitudes or habits that make them less likely to seek employment," she said. "If it were going into their homes and drug testing them, that would be different."

$1.3M savings cited

About 51,000 Tennessee families receive Temporary Assistance for Needy Families, a cash payment that averages about $164 a month, according to the most recent Department of Human Services report. Adults are required to keep their children in school and participate in a work-training program. They can't receive benefits for more than 60 months in their lifetimes, although the clock on benefits can stop and start depending on their circumstances.

The Department of Human Services is required to update the state legislature each quarter on its progress with drug-testing new applicants for the benefit. The fiscal note on the original bill estimated it would cost Tennessee about $172,000 a year for the program and save $1.3 million in benefits.

The first DHS report, filed in October, outlines program development in six states, including Arizona, Florida and Georgia, which decided to suspend implementation of its program until the lawsuit that halted Florida's makes its way through the courts. The most recent report, dated April 1, outlines the possibility of using the Drug Abuse Screening Test evaluating tool to show reasonable cause among program applicants.

DHS spokeswoman Devin Stone said no one was available to comment on the department's progress. In an email, she said applicants who test positive for drugs would have several resources - none required to be funded by the department - including substance abuse programs and 12-step groups to get clean so they can reapply.

The law says those who provide evidence of treatment can get six months of welfare benefits and then be retested. They would lose benefits if they fail that test.

Florida's law didn't include a questionnaire. Applicants had to pay for their own drug tests, which cost $25 to $50, then be reimbursed if those came back negative. In four months of testing, 108 out of 3,938 applicants failed, but hundreds more didn't take the test and were disqualified from benefits. Temporary assistance approvals dropped from 8,495 in September 2010 to 4,586 in September 2011, just before the judge stopped the program.

The law's supporters said that was success - people who knew they were on drugs weren't even bothering to apply. But it's more likely potential applicants simply couldn't afford the test or find a certified lab to administer it, said Maria Kayanan, a Miami-based attorney for the American Civil Liberties Union. Some of Florida's 67 counties didn't offer a single lab for periods of time.

Kayanan sued on behalf of Luis Lebron, a Navy veteran and single father who refused to take the test on constitutional grounds. A judge issued a temporary stay in October 2011, which an Atlanta appeals court panel upheld in February. Gov. Rick Scott vowed to take the case to the U.S. Supreme Court, but his state restored benefits to those who failed the test.

In the meantime, the Florida Department of Children and Families granted benefits to those who initially missed out because of failing or not taking the drug test.

'Incorrect message'

Kayanan said she doesn't see Tennessee's pre-screening questionnaire as solving the overall constitutional issue.

"In our opinion, that's paying lip service to constitutional reason or cause," she said. "It's singling out an entire class of individuals for screening because they are poor and in need of temporary assistance. Are there degrees of constitutionality? I don't think so."

Under Arizona's law, after welfare applicants receive one month of benefits, they are required to take the questionnaire, and then take it again every six months as part of the recertification process, said John Bowen, an Arizona state legislative specialist. He said the law has had no effect on the number of applications there.

Regardless of how it plays out in Tennessee, those who work with the impoverished and drug addicted are concerned about the law's implications.

"It sends out an incorrect message that anyone in need of assistance is at high risk of using illicit drugs based on their status," said Ben Middleton, chief operating officer for clinic services at Nashville-based nonprofit Centerstone. "Drug addiction is a disease. It's a health-related issue. To take the position that we're going to punish you and assume that you have this disease unless you can prove otherwise is unacceptable."

A better use of state resources would be creating more education and work opportunities so Tennesseans don't find themselves needing welfare, said Pam McMichael, executive director of the New Market, Tenn.-based Highlander Research and Education Center.

"It doesn't take stigmas away, it doesn't make our neighborhoods safer," she said. "It's an extension of an already unsuccessful war on drugs."

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