Department of Children and Families
EMERGENCY RULE
DCF 154
Substance Abuse Screening, Testing, and Treatment for the
Children First Program
The Wisconsin Department of Children and Families proposes an order to create chapter DCF 154, relating to substance abuse screening, testing, and treatment for the Children First program.
(See PDF for image)This emergency rule was approved by the governor on February 23, 2016.
The statement of scope for this rule, ss. 141-15, was approved by the governor on December 18, 2015, published in Register 720B, on December 28, 2015, and approved by Secretary Eloise Anderson on January 7, 2016. Finding of Emergency
Section 9106(2c) of 2015 Wisconsin Act 55 permits the department to promulgate an emergency rule to implement the requirement for individuals in certain public assistance programs to participate in drug screening, drug testing, and drug treatment, without providing “evidence that promulgating a rule under this paragraph as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare” and providing “a finding of emergency for a rule promulgated under this paragraph.” Analysis Prepared by the Department of Children and Families
Statutory authority: Section 49.162 (7), Stats., as created by 2015 Wisconsin Act 55 Statutes interpreted: Section 49.162, Stats., as created by 2015 Wisconsin Act 55 Related statute or rule: Section 49.36 (3m), as created by 2015 Wisconsin Act 55 Explanation of Agency Authority
Section 49.162 (7), Stats., as created by 2015 Wisconsin Act 55, provides that “the department shall promulgate rules to implement the substance abuse screening, testing, and treatment requirements” under s. 49.162, Stats. Section 49.162, Stats., as created by 2015 Wisconsin Act 55, requires substance abuse screening, testing, and treatment as a condition of eligibility for all of the following: • Persons who apply to participate in the Transform Milwaukee program or the Transitional Jobs program under s. 49.163, Stats. • Persons who apply to participate in W-2 services and benefits for noncustodial parents under s. 49.159 (1) (b), Stats. • Persons who are ordered by a court to register for Children First because they are not meeting their child support obligations.
The ch. DCF 154 applies to the Children First program. Rules for the other 3 programs were promulgated separately in ch. DCF 105. A specific rule for the Children First program is required due to unique and substantial differences in how that program is administered. Section 49.36 (3m), Stats., provides that “a person is not eligible to participate in a program under this section unless the person satisfies all of the requirements related to substance abuse screening, testing, and treatment under s. 49.162, Stats., that apply to the individual.” Section 49.162 (2), Stats., requires an individual who registers for the Children First program to complete a questionnaire that screens for the abuse of a controlled substance. If the administering agency determines that there is a reasonable suspicion that an individual who is otherwise eligible for a work experience program is abusing a controlled substance based on the individual’s answers to the questionnaire, the individual must undergo a test for the use of a controlled substance to be eligible to participate in the Children First program. If the individual refuses to answer the questionnaire or submit to a drug test, the individual is not eligible to participate in the program until the individual complies with the requirement to complete the questionnaire and undergo a test for the use of a controlled substance. An individual who undergoes a test for the use of a controlled substance and tests negative will have satisfactorily completed the substance abuse testing requirements. An individual who tests positive but presents evidence of a valid prescription that explains any metabolite detected by the test will also have satisfactorily completed the substance abuse testing requirements. An individual who tests positive without presenting evidence of a valid prescription is required under s. 49.162 (4) (a), Stats., to participate in substance abuse treatment in order to remain eligible for the Children First program. During the time an individual is participating in required controlled substance abuse treatment, the individual is required under s. 49.162 (4) (b), Stats., to undergo one or more random substance abuse tests. An individual who tests positive during treatment without presenting evidence of a valid prescription that explains any metabolite detected by the test will have one opportunity to begin treatment again. The individual re-entering treatment after an unexplained positive test remains eligible for the program only if the individual does not have another unexplained positive test before successfully completing treatment. Upon completion of the treatment program, the individual must undergo a test for substance abuse under s. 49.162 (4) (c), Stats. If the test result is negative or if it is positive only for metabolites associated with a valid prescription, the individual will have satisfactorily completed the substance abuse testing requirements under s. 49.162 (4) (c), Stats. Summary of the Rule
The purpose of this chapter is to establish a process to screen for, and, if appropriate, test for the use of controlled substances, as defined in this chapter, by individuals registered for the Children First program administered by the Department of Children and Families under s. 49.36, Stats., and to refer individuals determined to be abusing a controlled substance to a treatment provider for a substance abuse assessment and evaluation and appropriate treatment. The rule permits the department to approve one or more screening questionnaires that may be used to determine whether there is reasonable suspicion that an individual who is otherwise eligible for a work experience program under s. 49.36, Stats., is abusing a controlled substance, standards for concluding a reasonable suspicion of controlled substance abuse exists, and procedures for determining when an individual has refused to comply with the screening requirement. The rule defines how individuals reasonably suspected of abusing a controlled substance will be tested for use of a controlled substance, what alternative test results may be accepted to satisfy the testing requirement, what confirmation testing may be required, how test result records will be stored to assure confidentiality and compliance with federal regulations relating to diagnosis and treatment records for drug abuse, how applicants may consent to sharing test result information, and how refusal to submit to a test will be determined. For applicants who test positive for use of a controlled substance without evidence of a valid prescription that explains all controlled substances identified in the test, the rule defines how the individual will be assessed to determine the need for treatment, how random drug tests during treatment and at the completion of treatment will be carried out, what standards will be used to determine if an individual with a positive test result during or after treatment can continue or re-start treatment, and who has access to and maintains records of treatment. Finally, the rule determines whether an individual who is ineligible for a work experience program may reapply for the same program or apply for other department programs covered by the substance abuse screening, testing, and treatment requirement.
If a person registered for the work experience program under s. 49.36, Stats., fails to complete a screening questionnaire under s. DCF 154.04, fails to submit to a test under s. DCF 154.05, or fails to participate in treatment under s. DCF 154.06, the administering agency is required to notify the clerk of court for the court that ordered the individual to register for the program by submitting an affidavit. This notification requirement assures the court is aware the person is ineligible for the program under s. 49.36 (3m), Stats., and that the court will not receive an affidavit of completion under s. 49.36 (4), Stats. Summary of Factual Data and Analytical Methodologies
The rule was developed with the assistance of agencies administering the Children First program under the department’s 2015-2016 contracts and child support enforcement agencies. The department shared ch. DCF 105 with these stakeholders and asked them to identify changes that would be required to accommodate the unique features of the Children First program. Summary of Related Federal Requirements
Drug Testing of Welfare Recipients
Pursuant to 21 USC 862b, the federal government may not prohibit states from requiring drug tests for welfare recipients nor from sanctioning welfare recipients who fail such tests. Pursuant to 42 USC 608 (b), states are permitted to require substance abuse treatment as a component of an individual responsibility plan and to apply a penalty for noncompliance in the absence of good cause. The Children First program does not pay either a benefit or a subsidy, however it is funded with federal Temporary Assistance for Needy Families block grant funding, and is subject to the above provisions. Confidentiality
Confidentiality of records relating to drug testing and treatment is governed by regulations specific to drug testing and treatment programs that are federally assisted under 42 CFR Part 2 and by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 45 CFR Parts 160 and 164, Subparts A and E. Programs subject to both sets of rules must comply with both, and they are generally compatible. Both sets of rules are directed toward assuring patient records remain private and are not disclosed unless the patient voluntarily consents to their release. Comparison to Rules in Adjacent States
There are no work experience programs for child support payers similar to Children First in adjacent states. The comparison below includes more generally the rules in adjacent states for TANF block grant funded programs.
The only adjacent state planning drug testing in a public assistance program is Michigan. In 1999, Michigan passed a law requiring all applicants for Michigan’s Temporary Assistance for Needy Families program, the Family Independence Program, to undergo drug testing. That law was declared unconstitutional in a decision that held Michigan law authorizing suspicionless drug testing of welfare recipients was unconstitutional because it was not intended to address public safety, and the state's desire to address substance abuse as a barrier to employment was not a special need sufficient to justify departure from the Fourth Amendment requirement of individualized suspicion. While initially reversed on appeal to the 6th Circuit Court of Appeals, the initial decision was vacated when the 6th Circuit Court decided to hear the case en banc. The full court split 6-6 without decision, and the effect was to affirm the District Court’s decision and order.
In 2014, the Michigan legislature authorized a new three-county pilot project to evaluate drug testing of applicants for public assistance based on suspicion, and the bills were signed into law in December 2014. There are no administrative rules for this project, which is scheduled to run for one-year ending September 2016.
Other states that have adopted administrative rules relating to drug testing and treatment of recipients of public assistance include North Carolina, Tennessee, and Missouri. Unlike Wisconsin where the enabling statute addresses participation in work experience programs, the North Carolina, Tennessee, and Missouri rules determine eligibility to receive cash benefits.
Effect on Small Business
None. The rule imposes no compliance or reporting requirements on small businesses.
Analysis Used to Determine Effect on Small Business or in Preparation of Economic Impact Analysis
The impact of the rule is limited to county child support enforcement agencies administering the Children First program and W-2 agencies providing employment services under contracts with those county agencies and individuals participating in those programs. No current W-2 agency or child support enforcement agency is an independently owned and operated business entity with fewer than 25 employees or less than $5,000,000 in gross annual sales, as specified in s. 227.114 (1), Stats. The primary impact of the rule is on individuals registered for the Children First program. All reporting and compliance requirements apply only to agencies administering the Children First program and participants in that program. Agency Contact Person
Kris Randal, Administrator, Division of Family and Economic Security, Department of Children and Families, (608) 422-6187, kris.randal@wisconsin.gov. SECTION 1. Chapter DCF 154 is created to read:
