In the last decade, numerous states began requiring those applying for and/or receiving cash assistance under Temporary Assistance for Needy Families (TANF) to undergo screening for the possibility of illicit substance use and, dependent on screening results, chemical drug testing. As of February 2019, at least 13 states have such policies.^[1] More recently, states have tried to apply similar rules to other programs, including food assistance under the Supplemental Nutrition Assistance Program (SNAP), Medicaid, and Unemployment Insurance (UI)

In states that have implemented drug testing policies, few applicants have been identified as likely users, and even fewer have tested positive (in most cases, less than 1 percent of applicants).^[2] This practice is based on erroneous stereotypes3 which, among other things, suggest that people with low incomes are more likely to use controlled substances than those with higher incomes. Such testing is an unwise use of state taxpayer dollars since operating costs far exceed the money saved from denying people benefits. This is consistent with previous research finding that only a small share of welfare recipients have substance use disorders.4 Moreover, drug testing policies harm families and do not effectively identify those who need substance use disorder treatment.

Courts Have Rejected Suspicionless Testing

In the past, some states have sought to impose drug testing requirements on all TANF applicants and/or recipients. Routinely, these laws have been found unconstitutional under the Fourth Amendment, which prohibits unreasonable searches, because the testing has been deemed a search without cause.^[5] In 1999, Michigan became the first state to implement suspicionless drug testing for welfare recipients under its Family Independence Program. The state required all TANF applicants to submit urine drug tests to receive benefits. In 2003, the U.S. Sixth Circuit Court of Appeals upheld a federal district court ruling which found the law unconstitutional.^[6] In 2011, Florida passed a law requiring suspicionless drug testing of all TANF applicants and random drug testing of current beneficiaries. In 2014, the U.S. Eleventh Circuit Court of Appeals held that Florida’s law violated the Fourth Amendment for its unreasonable search of applicants without evidence of “a more prevalent, unique, or different drug problem among TANF applicants than in the general population.”^[7]

Before the court imposed an injunction in 2011, Florida implemented its rule for four months. During that period, the state found only 2.6 percent of more than 4,000 applicants who tested positive for controlled substance use. The law required reimbursement of the drug testing fees to those who passed the drug test, costing the state $118,140.8 The state spent an additional $307,883 in legal fees and other costs appealing the ruling.^[9] Combined with the settlement amount awarded to the plaintiff, the drug testing law cost Florida nearly $1 million.

Many States Now Require Screening Before Drug Testing in TANF

Following these rulings, other states have pursued legislation requiring drug testing for some TANF applicants or recipients. To avoid legal challenges, states claim a “reasonable suspicion” of illicit substance use based on results of a screening test. Such states require all applicants to complete a brief substance use disorder questionnaire with questions inquiring of recent drug use. Affirmative responses to the questions signal the possibility of recent drug use, thus forming a basis for reasonable suspicion.^[10] At least five states use the Substance Abuse Subtle Screening Inventory (SASSI) to determine reasonable suspicion. By the SASSI Institute’s own admission, however, using its product to discriminate against people applying for public assistance subverts its purpose and violates the Americans with Disabilities Act.^[11] Some states have directed their agencies’ staff to consider an applicant’s employment record, criminal history, and personal or visual observations during appointments as a basis for reasonable suspicion. Such practices could have disparate racial impacts because people of color are more likely to have criminal records due to unequal enforcement of drug laws, particularly for marijuana; ^[12] previous job terminations based on racially biased practices such as hair drug tests;^[13] and implicit bias on the part of public assistance administrators.^[14]

Some states directly pay the cost of screening and testing each TANF applicant, while others require the applicant to pay. After a two-year pilot, Arkansas recently began requiring all TANF applicants to be screened for substance use disorder prior to enrollment. Based on screening results, Arkansas applicants can be subjected to drug tests and required to enroll in substance use disorder treatment. Of the states requiring an applicant to pay for testing, some reimburse the cost to a recipient with negative results. If an applicant tests positive and the state paid for the test, the agency may seek reimbursement by deducting the test’s cost from a recipient’s program benefits. A Michigan pilot program, for example, deducted the cost of drug testing from the monthly benefit of those who tested positive, while North Carolina terminates benefits and compels the individual to cover the costs of drug testing and substance use disorder treatment.^[15]

States also vary in the consequences they impose on applicants who either test positive or are noncompliant with the drug screening process. Most states mandate mental health or substance use disorder treatment for individuals who fail drug testing, requiring consistent participation and completion of a treatment program to receive assistance. The length of time a person is ineligible to reapply to TANF also differs among states, ranging from 90 days for the first test failure to permanent ineligibility after a third failure.^[16]

Screening and Testing in Other Programs

In recent years, a few states have proposed expanding drug testing to other programs including SNAP, Medicaid, and UI. However, because these programs are federal-state partnerships, with specified eligibility rules, states cannot add their own eligibility conditions without federal approval.

Georgia attempted to require drug testing as a condition of eligibility in 2012 and 2014, to which the U.S. Department of Agriculture (USDA) forbade. ^[17] In 2015, Wisconsin passed legislation requiring drug testing for SNAP recipients. After the Obama Administration deemed the policy incongruent with federal law, then Governor Scott Walker attempted to sue the federal government to obtain permission.^[18] Walker’s lawsuit was dismissed by a federal judge who ruled Wisconsin could not sue because the state had not implemented its drug testing policy. Undeterred, Walker signed a state budget which included a provision mandating screening and testing for applicants to FoodShare Employment and Training (FSET) under SNAP. ^[19] This rule has the indirect effect of limiting access to SNAP because people who are unemployed and not otherwise exempt can lose their SNAP benefits if they fail to participate in FSET. Although Walker was defeated in November 2018, the Wisconsin legislature in December 2018 enacted SB 886, 20 which incorporated provisions of the rule into state statutes to prevent the new governor from withdrawing it.

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