Drug Testing of Public Assistance Recipients as a Condition of Eligibility

April 8, 2008

Drug testing welfare recipients as a condition of eligibility is a policy that is scientifically, fiscally, and constitutionally unsound.

The 1996 Welfare Reform Act authorized - but did not require - states to impose mandatory drug testing as a prerequisite to receiving state welfare assistance.[1]

Although no states currently subject welfare recipients to random drug testing as a condition of eligibility, some are considering doing so.

Random drug testing of welfare recipients is scientifically and medically unsound:

  • Welfare recipients are no more likely to use drugs than the rest of the population.

    • According to a 1996 study by the National Institute of Alcohol Abuse and Alcoholism, differences between the proportion of welfare and non-welfare recipients using illegal drugs are statistically insignificant.[2]
    • Before the Michigan policy was halted, only 10% of recipients tested positive for illicit drugs. Only 3% tested positive for hard drugs, such as cocaine and amphetamines[3]  – rates that are in line with the drug use rates of the general population.[4]
    • Seventy percent of all illicit drug users (and presumably a much higher percentage of alcohol users), ages 18-49, are employed full-time.[5]

       

  • Science and medical experts overwhelmingly oppose the drug testing of welfare recipients.

    • The Center for Addiction and Mental Health (CAMH) recommended against implementing random drug testing of welfare recipients. CAMH believes that there was little benefit to testing and that the stigma associated with testing impacted those on welfare negatively. They recommended that resources be allocated towards better training for government workers to detect signs of substance abuse and mental disorders, as well as to greater assistance and treatment to those who need help.[6]
    • In addition, mandatory drug testing of welfare recipients is opposed by the American Public Health Association, National Association of Social Workers, Inc., National Association of Alcoholism and Drug Abuse Counselors, American College of Obstetricians and Gynecologists, National Council on Alcoholism and Drug Dependence, Association of Maternal and Child Health Programs, National Health Law Project, National Association on Alcohol, Drugs and Disability, Inc., National Advocates for Pregnant Women, National Black Women’s Health Project, Legal Action Center, National Welfare Rights Union, Youth Law Center, Juvenile Law Center, and National Coalition for Child Protection Reform.[7]

Random drug testing of welfare recipients is fiscally irresponsible:

  • Drug testing is expensive.

    • The average cost of a drug test is about $42 per person tested,[8] not including the costs of hiring personnel to administer the tests, to ensure confidentiality of results and to run confirmatory tests to guard against false positives resulting from passive drug exposure, cross-identification with legal, prescription drugs such as codeine and legal substances such as poppy seeds.
    • Another way to measure the cost is by counting what it costs to “catch” each drug user. Drug testing is not used by many private employers because of the exorbitant cost of catching each person who tests positive. One electronics manufacturer, for example, estimated that the cost of finding each person who tested positive was $20,000, since after testing 10,000 employees, only 49 tested positive. A congressional committee also estimated that the cost of each positive drug test of government employees was $77,000, because the positive rate was only 0.5%.[9]
  • Mandatory drug testing is an ineffective means to uncover drug abuse.

    • An Oklahoma study found that a questionnaire was able to accurately detect 94 out of 100 drug abusers. The questionnaire was also useful in detecting alcohol abusers, something drug tests fail to accomplish.[10]
    • Certain counties in Oregon experimented with drug testing on some welfare recipients, but the process was halted when it was found that drug testing was less effective in identifying drug abuse than less invasive, cheaper methods.[11]
    • Most types of drug tests fail to detect alcohol abuse – the most commonly abused substance among Americans – and are most likely to detect marijuana use since the active ingredient in marijuana stays in the body’s system longer than any other illicit substance. Therefore, drug tests often fail to identify people who are using more powerful, more addictive and more dangerous drugs like methamphetamine or cocaine, which exit the body’s system in a matter of hours or days.[12]
  • Many states have rejected the random drug testing of welfare recipients as impractical and fiscally unjustifiable.

    • For example, New York and Maryland each considered a program to randomly drug test those receiving welfare, but abandoned the plan as not cost-effective, given that urinalysis is almost exclusively a barometer of marijuana use and that welfare recipients are required to undergo regular supervision, allowing for effective monitoring absent the cost and intrusion of mandatory drug testing.[13]
    • Louisiana passed a law in 1997 requiring drug testing for welfare recipients. However, a task force set up to implement the law found more limited drug testing of individuals identified by a questionnaire to be more cost-effective than mandatory drug testing.[14]
    • Alabama decided against drug testing because it found that focusing on job training programs was a more effective method of moving individuals off of welfare.[15]

Random drug testing of welfare recipients is likely unconstitutional under both the U.S. Constitution and some state constitutions:

  • Michigan is the only state to attempt to impose drug testing of welfare recipients – a policy that was struck down as unconstitutional in 2003. The ACLU challenged the mandatory drug testing program as unconstitutional, arguing that drug testing of welfare recipients violates the Fourth Amendment’s protection against unreasonable searches. The case, Marchwinski v. Howard, concluded when the U.S. Court of Appeals for the Sixth Circuit upheld a lower court’s decision striking down the policy as unconstitutional.[16]

  • At the time Michigan’s drug testing scheme was struck down, the 49 other states had rejected such a program for a variety of fiscal and practical reasons: at least 21 states concluded that such a program “may be unlawful”; 17 states cited cost concerns; 11 states had not considered drug testing at all; and 11 gave a variety of practical/operational reasons.[17]

  • In halting the implementation of Michigan’s drug testing law, U.S. District Court Judge Victoria Roberts ruled that the state's rationale for testing welfare recipients “could be used for testing the parents of all children who received Medicaid, State Emergency Relief, educational grants or loans, public education or any other benefit from that State.”[18] Indeed, any of the justifications put forth to subject welfare recipients to random drug testing would also by logical extension apply to the entirety of our population that receives some public benefit and/or that is a parent. It is clear that our constitution – and common sense – would object to the random drug testing of this large group of people, making the drug testing of an equally absurd category of people – welfare recipients – unconstitutional as well.

  • Some states’ constitutions actually offer greater privacy protection to individuals than does the U.S. Constitution. It is very possible that random drug testing schemes for welfare recipients will run afoul of these state-specific protections as well.

[1] Personal Responsibility and Work Opportunity Act (1996). Internet. Available:  http://www.usinfo.state.gov/usa/infousa/laws/majorlaw/h3734_en.htm.

[2] National Institutes of Health Press Release, NIAAA Researchers Estimate Alcohol and Drug Use, Abuse, and Dependence Among Welfare Recipients, (1996). Internet. Available: http://www.nih.gov/news/pr/oct96/niaaa-23.htm

[3] Brief of Plaintiffs-Appellees, Marchwinski v. Howard, 309 F.3d 330 (6th Cir. 2002) (No. 00-2115), rev’d en banc, 2003 WL 1870916 (Apr. 7, 2003).

[4] Substance Abuse and Mental Health Servs. Admin., 2006 National Survey on Drug Use and Health (available at http://www.drugabusestatistics.samhsa.gov/nsduh/2k6nsduh/2k6Results.cfm#Fig2-1).

[5] Substance Abuse and Mental Health Servs. Admin., Worker Drug Use and Workplace Policies and Programs: Results from the 1994 and 1997 National Household Survey on Drug Abuse 1 (1999).

[6] Ctr. for Addiction and Mental Health, Position Statement on Mandatory Drug Testing and Treatment of Welfare Recipients (2000) (available at  http://www.camh.net/Public_policy/Public_policy_papers/man_drug_test_pos00.pdf.pdf).

[7] Brief of Amici Am. Pub. Health Ass’n et al., Marchwinski v. Howard, 309 F.3d 330 (6th Cir. 2002) (No. 00-2115), rev’d en banc, 2003 WL 1870916 (Apr. 7, 2003) (available at /files/FilesPDFs/marchwinskiamicusbrief1_22_01.pdf).

[8] U.S. Dep’t of Educ., Robert L. DuPont, Teresa G. Campbell and Jacqueline J. Mazza, Report of a Preliminary Study: Elements of a Successful School-Based Student Drug Testing Program 8 (2002).

[9] R. Brinkley Smithers Inst., Cornell Univ., Workplace Substance Abuse Testing, Drug Testing: Cost and Effect (Jan. 1992).

[10] Oklahoma Dept. of Human Servs, “TANF: Focus on Substance Abuse” (March 5, 1998)

[11] Ctr. for Addiction and Mental Health, Forcing Welfare Recipients into Drug Testing and Treatment, (2001) (available at http://www.camh.net/journal/journalv4no2/forcing_welfare_drugtests.html).

[12] "Drugs of Abuse Reference Guide," LabCorp Inc, Internet. Available: http://www.labcorpsolutions.com/images/Drugs_of_Abuse_Reference_Guide_Flyer_3166.pdf

[13] Nancy Young and Sidney Gardner, Implementing Welfare Reform: Solutions to the Substance Abuse Problem (1997).

[14] New York Times, Opposition to Plan to Test Welfare Applicants For Drugs (1999).

[15] The Lindesmith Ctr., Drug Testing Welfare Applicants: A Nationwide Survey of Policies, Practices, and Rationales (Nov. 1999).

[16] Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000), aff’d, 60 F. App’x 601 (6th Cir. 2003)

[17] The Lindesmith Ctr., Drug Testing Welfare Applicants: A Nationwide Survey of Policies, Practices, and Rationales (Nov. 1999)

[18] Marchwinski v. Howard, 113 F. Supp. 2d 1134, 1142 (E.D. Mich. 2000), aff’d, 2003 WL 1870916 (6th Cir. Apr. 7, 2003).

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