Atlanta Progressive News

With additional legal reporting by Matthew Cardinale.
(APN) ATLANTA — Yesterday, November 15, 2011, State Rep. Jason Spencer (R – Woodbine) and State Sen. John Albers (R-Roswell) introduced, or pre-filed, legislation requiring drug tests for applicants seeking assistance through the Temporary Assistance for Needy Families (TANF) program.
The House bill is called the Social Responsibility and Accountability Act, HB 668. Supporters include State Reps. Alex Atwood, Charlice Byrd, Penny Houston, and Paulette Rakestraw-Braddock, and Wendell Willard.

The Senate version is SB 292. Co-sponsors include Buddy Carter, Steve Gooch, William Ligon, Chip Rogers, and David Shafer.

“Georgia taxpayers have a vested interest in making sure that their hard-earned tax dollars are not being used to subsidize drug addiction,” Rep. Spencer said.

The press release issued by the Georgia House, dated November 10, says the legislation would only affect TANF. However, in the Media Advisory meeting, Sen. Albers said the Senate version would require TANF as well as Medicaid recipients to get a mandatory drug test in order to receive benefits.

The Georgia Department of Human Service would conduct the drug tests. The applicant would pay for the urine analysis, but would be reimbursed by the State if the test proved negative.

Under the proposed HB 668, any TANF applicant who fails the drug test will be ineligible for TANF benefits for one month after their first positive result. If an applicant fails the drug test for a second time, that person will be ineligible for the benefit for three months. Any person failing the test three or more times will become ineligible for TANF benefits for three years, unless the applicant successfully completes an approved substance abuse treatment program at their own expense, which will reduce the ineligibility period to one year.

Most hard drugs are not detectable in urine after only a few days; however, marijuana, when smoked chronically, can be detected for up to thirty days. The tests would probably be ineffective to target hard drugs like heroin, meth, or crack cocaine, but would effectively target marijuana, which, as previously reported by APN, is less dangerous than alcohol or tobacco.

APN asked whether those who already receive TANF, but who may have to recertify their eligibility on a regular basis, would be considered “applicants” under the proposals; neither bills, reviewed by APN, provide an answer. Shawna Mercer, Senior Communications Specialist for the State Senate, did not immediately know the answer but said she would find out.

“HB 668 would not keep the benefits away from the children,” Rep. Spencer said. If the parent failed the drug test, then a family member, after also taking a drug test, can receive the TANF benefits on behalf of the children.

At the press conference, one reporter noted that a lot of corporations and CEO’s get state assistance in the form of tax exemptions and tax cuts. In the spirit of fairness, should those CEO’s be drug tested, the reporter asked?

“We have several programs for corporations both on the state and federal level to help them to create jobs and stimulate the economy. These are separate issues which we should not confuse. When we give assistance to people, we don’t want to encourage dependence,” Senator Albers said.

“The purpose of the legislation is not to criminalize the participants but to direct them to drug rehab programs,” Spencer said.

Atlanta Progressive News asked Spencer, seeing as how people applying for TANF need money for basic survival needs, then how are they to pay for drug rehabilitation?

“The taxpayers will not be responsible for the drug rehabilitation, individuals will be directed to state approved rehab centers, churches, and charities,” Spencer said.

No information was available about these state approved drug rehab programs, the cost of such programs, nor the success rate of these alleged programs. Meanwhile, most churches and charities are already overrun with Georgia’s growing homeless population due to the state’s high unemployment and foreclosure rates. There are many well-reputed Florida drug treatment centers next door in Florida, however, for people to get help with any drug addiction issues.

Mercer also told APN that the Senate does not have an estimated cost to taxpayers for the drug tests; the funds would be taken from Georgia’s TANF funds, thus depleting the amount of benefits available to families.

Mercer also told APN that the Senate does not have any information on levels of drug abuse among welfare recipients in Georgia.

HB 668 is modeled after Florida legislation, which passed May 31, 2011.

On October 24, 2011, Federal District Judge Mary Scriven suspended the Florida law.

Florida’s law was challenged by the American Civil Liberties Union of Florida and the Florida Justice Institute as an unconstitutional violation of the Fourth Amendment’s proscription against unwarranted searches and seizures.

The two organizations filed on behalf of Luis Lebron, 35, a Central Florida man and Navy veteran turned college student, who was denied state benefits after he refused to submit to a drug test.

“Plaintiff refuses to take a drug test because he believes that requiring him to pay for and submit to such a test is unreasonable when there is no reason to believe that he uses drugs,” Scriven wrote.

Scriven noted that the State of Florida had enacted a demonstration project between 1999 and 2001, in which they drug tested welfare recipients who they had a reasonable cause to believe were drug users. Of those tested, only 5.1 percent of the test results came back positive.

Thus, the level of drug use among welfare recipients was found to be lower than that of the general population, which was estimated to be 8.13 percent.

The study, which in 2003 was published in the Journal of Health & Social Policy, also found no difference in employment rates or earnings between those who tested positive and those who did not; and no difference between the amount of benefits received between the two groups.

In Florida, the results of positive drug tests are provided to the state’s Florida Abuse Hotline; are listed as part of a Parent Needs Assistance referral into a child welfare database known as the Florida Safe Families Network; and are accessible to law enforcement officials, who may make such use of the data as they see fit.

“I have addressed the privacy concerns that were mentioned by Judge Mary Scriven in the challenge to Florida’s law,” Rep. Spencer said in his press release. “Specifically, the language in my bill will prevent an applicant’s drug test results from being used by law enforcement or by the courts as evidence against them. My bill also requires the Department of Human Resources to secure the confidentiality of test results as required by HIPPA and prevents the test results from being released to any third party. Only the applicant and the Department will be allowed to know the results of the test for the purposes of determining TANF eligibility.”

However, that will not address all the concerns raised in Scriven’s ruling.

“Notwithstanding the overwhelming body of case law to the contrary, the State contends that the drug testing of welfare recipients is not a search. According to the State, the drug test is not forced or compelled, and, if there is no consent to the testing, there is no drug test and, thus, no search… The Court finds this argument unpersuasive,” Scriven wrote.

Scriven also wrote that Florida is not entitled to a “special needs exemption” from the US Constitutional prohibition against suspicionless searches, especially after the state’s own study found lower drug use among welfare recipients than the general population.

Scriven also wrote that being subjected to an unreasonable search without probable cause would amount to irreparable harm.

Florida’s “extreme position–that if the state provides assistance to someone it can conduct a privacy-invading physical search–is especially startling coming from a governor who campaigned to stop government from trampling on the rights of the people,” Howard Simon, Executive Director of Florida ACLU, said in a statement.

In Florida, only two percent of those tested were found to have traces of drugs in their urine.

However, the State of Florida has saved over two million dollars because of a 48 percent reduction in applications for assistance, since this legislation went into effect.

“That tells me those individuals were reconsidering their actions and not wanting to be drug tested,” Rep. Spencer said.

But Judge Scriven did not agree. “Declining to take the drug test can be attributed to a number of factors in addition to drug use, including an inability to pay for the testing, a lack of laboratories near the residence of an applicant, inability to secure transportation to a laboratory or, as in the case at bar, a refusal to accede to what an applicant considers to be an unreasonable condition for receiving benefits.”

In 1996, as part of the welfare reform led by President Bill Clinton, a Democrat, the Aid to Families with Dependent Children (AFDC) program was changed to the Temporary Aid for Needy Families (TANF) program. One of the changes was to make the program a block grant program, giving states flexibility over how to administer the program, with an emphasis on promoting work and marriage.

Accordingly, TANF is the only federal aid program which allows states to conduct drug testing. However, Judge Scriven noted that the law concerning TANF does not specify how such drug tests could be carried out by states in a way that would meet US constitutional standards.

The two bills will likely be considered in the 2012 Session of the General Assembly, to begin in January.

(END/2011)