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: SUBSTANCE ABUSE SCREENING, TESTING, AND TREATMENT FOR THE CHILDREN FIRST PROGRAM
DCF 154.01 Purpose. The purpose of this chapter is to establish a process to screen for, and, if appropriate, test for the use of controlled substances by persons ordered to participate in the Children First work experience program administered by the department under s. 49.36, Stats., and to refer persons determined to be abusing a controlled substance to a treatment provider for a substance abuse assessment and evaluation and appropriate treatment as required by s. 49.162, Stats. DCF 154.02 Definitions. In this chapter:
(1) “Administering agency” has the meaning given in s. 49.162 (1) (a), Stats. (2) “Confirmation test” means an analytical procedure used to quantify a specific controlled substance or its metabolite in a specimen through a test that is different in scientific principle from that of the initial test procedure and capable of providing requisite specificity, sensitivity, and quantitative accuracy to positively determine use of a controlled substance.
(3) “Controlled substance” or “substance” has the meaning given for “controlled substance” in s. 961.01 (4), Stats. (4) “Department” means the department of children and families.
(5) “Metabolite” means a chemical present in the body when a controlled substance is being broken down through natural metabolic processes that can be detected or measured as a positive indicator that a controlled substance associated with the metabolite has been used.
(6) “Medical review officer” means a licensed physician employed by or providing services under contract to a drug testing vendor who has knowledge of substance abuse disorders and laboratory testing procedures and who has the necessary training and experience to interpret and evaluate a person’s positive test result in relation to that person’s medical history and current valid prescriptions.
(7) “Person” means a parent who is not a custodial parent under s. 767.55 (2) (a), Stats., who has been ordered by the court pursuant to s. 767.55 (2) (am), Stats., to participate in a work experience and job training program under s. 49.36, Stats. (8) “Reasonable suspicion” means suspicion of controlled substance abuse by a person based on that person’s score on a screening questionnaire.
(9) “Screening” means completion of a questionnaire regarding the person’s current and prior use of controlled substances.
(10) “Specimen” means tissue, fluid, or a product of the human body capable of revealing the presence of controlled substances or their metabolites.
(11) “Treatment” means services that are conducted under clinical supervision to assist a person through the process of recovery from controlled substance abuse and may include screening for abuse of controlled substances, application of approved placement criteria, intake, orientation, assessment, individualized treatment planning, intervention, individual or group and family counseling, referral, discharge planning, after care or continuing care, recordkeeping, consultation with other professionals regarding the patient’s treatment, recovery and case management, crisis intervention, client education, employment, and problem resolution in life skills functioning.
(12) “Treatment program” means a program certified to provide treatment for controlled substance abuse as a medically managed inpatient service under s. DHS 75.10, a medically monitored treatment service under s. DHS 75.11, a day treatment service under s. DHS 75.12, an outpatient treatment service under s. DHS 75.13, a transitional residential treatment service under s. DHS 75.14, or a narcotic treatment service for opiate addiction under s. DHS 75.15. (13) “Treatment provider” or “provider” means a provider of treatment for controlled substance abuse certified by the department of health services under the provisions of ch. DHS 75. (14) “Work experience program” or “program” means a work experience program for noncustodial parents under s. 49.36, Stats. DCF 154.03 Information about the requirement for controlled substance abuse screening, testing, and treatment. An administering agency shall provide to any person who has been ordered by a court to register for a work experience program under s. 49.36, Stats., information that explains the requirement to undergo screening, testing, and treatment for abuse of controlled substances under s. 49.162, Stats. The information shall be in a format approved by the department. DCF 154.04 Administering a controlled substance abuse screening questionnaire to determine reasonable suspicion of substance abuse. (1) WHO MUST COMPLETE A SCREENING QUESTIONNAIRE. An administering agency shall administer a controlled substance abuse screening questionnaire approved by the department to any person ordered to participate in a work experience program.
(2) EFFECT OF FAILING TO COMPLETE SCREENING QUESTIONNAIRE. The person is required to answer all questions on the screening questionnaire, sign and date the questionnaire, and submit it to the administering agency. A person who fails to submit a completed screening questionnaire is not eligible to participate in a work experience program, and the administering agency shall inform the clerk of courts by affidavit that the person is not eligible to participate in the program.
(3) EFFECT OF SUCCESSFULLY PASSING THE SCREENING QUESTIONNAIRE. A person whose score on the screening questionnaire does not establish a reasonable suspicion of abuse of a controlled substance has fully satisfied the requirements of this chapter and may participate in a work experience program subject to this chapter without further screening, testing, or treatment.
DCF 154.05 Requiring a test for the use of a controlled substance. (1) WHO MAY BE REQUIRED TO UNDERGO TESTING. A person whose score on the screening questionnaire establishes a reasonable suspicion of abuse of a controlled substance shall be required to undergo a test for the use of a controlled substance.
(2) NATURE OF TESTING REQUIRED. Testing shall consist of laboratory analysis of a specimen collected from a person by a drug testing vendor. The department shall provide to each administering agency a list of all controlled substances or metabolites of controlled substances that must be included in the test and cutoff levels for the test and cutoff levels for any confirmation test that may be used. The department may add or delete controlled substances or metabolites that must be included in the laboratory test to reflect changes in pre-employment drug testing practices of Wisconsin employers. Any positive test result on the initial drug test shall be confirmed through a confirmation test using the original specimen collected from the person.
(3) CONTRACT FOR TESTING SERVICES. Subject to the department’s approval, the administering agency may contract with any qualified drug testing vendor to collect a specimen, carry out laboratory analysis of the specimen, store the specimen for confirmatory testing if required, complete confirmatory testing, and provide review by a medical review officer. The department may require the administering agency to use a specific testing service procured through state contracting if the department determines that volume discounts or other preferential pricing terms can be achieved through a statewide contract.
(4) REFUSAL TO SUBMIT TO A TEST. A person refuses to submit to a test if the person does any of the following:
(a) Fails or refuses to provide a specimen during an appointment scheduled by the administering agency for that purpose.
(b) Fails or refuses to appear for a test at the time and place directed by the administering agency.
(c) Fails or refuses to complete any form or release of information required for testing, including those required by the drug testing vendor that permit the drug testing vendor to report test results to the administering agency.
(d) Fails or refuses to provide a valid specimen for testing.
(e) Fails or refuses to provide verification of identity to the testing vendor.
(f) Fails or refuses to cooperate with the medical review officer, including refusal to complete an interview or answer questions or refusal to provide records necessary to demonstrate possession of a valid prescription.
(5) EFFECT OF REFUSAL TO SUBMIT TO A TEST. A person who refuses to submit to a test under sub. (4) is ineligible to participate in a work experience program until the person submits to a test. The administering agency may direct a person who has refused to submit to a test under sub. (4) and subsequently agrees to submit to a test to undergo drug testing on a random basis at any time within 10 days after the person agrees to submit to a test. A person may not participate in the work experience program until the person undergoes a test for the use of a controlled substance and test results have been reported to the administering agency. If a person refuses to submit to a test for a period longer than 10 business days, the administering agency shall inform the clerk of courts by affidavit that the person is not eligible to participate in the program until the person submits to a test.
(6) REQUIREMENT FOR A CONFIRMATION TEST. If a person tests positive for the use of a controlled substance, the drug testing vendor shall perform a confirmation test using the same specimen obtained for the initial drug test. The results of the confirmation test shall be verified by a medical review officer after considering the person’s medical history as well as any current valid prescription and use of over-the counter medication. All test results that are non-negative shall be interpreted as positive or negative by the drug testing vendor’s medical review officer who shall be responsible for determining the presence of a controlled substance.
(7) ACCEPTING TEST RESULTS FROM ANOTHER PROGRAM. Results of a drug test performed by another state program, including a work experience program under s. 49.159 (1) (b), 49.163, 49.45 (23) (g), 49.79 (9) (d) or 108.133, Stats., or a drug test carried out by the Wisconsin department of corrections, can be used by an administering agency to determine whether to refer a person to treatment if the prior test results are provided directly to the administering agency, all the controlled substances and metabolites required by the department to be tested under this chapter are included in the prior test results, and the test occurred within the previous 90 days. (8) EFFECT OF A NEGATIVE TEST. A person who undergoes a test for the use of a controlled substance under this subsection and tests negative for use of a controlled substance or tests positive for use of a controlled substance but provides evidence of a valid prescription for each controlled substance for which the person tests positive will have fully satisfied the requirements of this chapter and may participate in a work experience program without further screening, testing, or treatment.
(9) EFFECT OF A POSITIVE TEST. A person whose test results are positive for any controlled substance or metabolite tested and who fails to present evidence of a valid prescription for the controlled substance shall be required to participate in treatment under s. DCF 154.06. DCF 154.06 Requiring participation in treatment. (1) WHO mAY BE REQUIRED TO PARTICIPATE IN TREATMENT. Every person who undergoes a test under s. DCF 154.05 and tests positive for the use of a controlled substance without presenting evidence of a valid prescription as described in s. 49.162 (1), Stats., and as determined by the medical review officer for the testing vendor, shall be required to participate in treatment in order to be eligible to participate in a work experience program. (2) REFERRAL FOR TREATMENT. The administering agency shall provide information to every person required to participate in treatment about treatment providers and county-specific assessment and enrollment activities required for entry into treatment. The administering agency shall monitor the person’s progress in entering and completing treatment and the results of any random testing for the use of a controlled substance carried out during or at the conclusion of treatment.
(3) SUBSTANCE ABUSE EVALUATION AND ASSESSMENT. A treatment provider may conduct a substance abuse evaluation and assessment and take any of the following actions based on the evaluation and assessment:
(a) If a treatment provider determines a person does not need treatment, the provider shall notify the administering agency of its determination.
(b) If a treatment provider determines a person is in need of treatment, the provider shall refer the person to an appropriate treatment program to begin treatment and shall notify the administering agency of the referral and the expected begin date and duration of treatment.
(c) If a treatment provider determines a person is in need of treatment but is unable to refer the person because there is a waiting list for enrollment in appropriate treatment programs, the provider shall notify the administering agency when the person is expected to be enrolled.
(4) ELIGIBILITY OF A PERSON TO PARTICIPATE IN A WORK EXPERIENCE PROGRAM WHEN TREATMENT IS NOT NEEDED OR THE PERSON IS PLACED ON A WAITING LIST. (a) A person who has been determined by a treatment program after assessment not to need treatment will have fully satisfied the requirements of this chapter and may participate in a work experience program without further screening, testing, or treatment for the use of a controlled substance.
(b) A person who is on a waiting list for enrollment in an appropriate treatment program is eligible to participate in a work experience program during the waiting list period, provided the person is not eligible for immediate enrollment in any other appropriate treatment program.
(5) SATISFYING THE REQUIREMENT TO PARTICIPATE IN TREATMENT THROUGH PARTICIPATION IN ANOTHER TREATMENT PROGRAM. An administering agency shall accept current participation in a treatment program to satisfy the requirements of this section. The person participating in the treatment program shall execute a release of information to allow the administering agency to obtain verification of successful participation in that treatment program.
(6) REFUSAL TO PARTICIPATE IN TREATMENT. A person refuses to participate in treatment if the person does any of the following:
(a) Fails or refuses to complete any form or release required for program administration, including those required by the treatment provider in order to share information with the administering agency about the person’s participation in treatment.
(b) Fails or refuses to participate in any controlled substance testing required by the treatment provider or the administering agency during the course of required treatment, including random controlled substance testing directed by the treatment provider or administering agency.
(c) Fails or refuses to meet any attendance or participation requirement established by the treatment provider.
(d) Fails or refuses to complete a substance abuse assessment.
(7) EFFECT OF REFUSAL TO PARTICIPATE IN TREATMENT. (a) If the treatment provider agrees to continue treatment, a person who refuses to participate in treatment shall be given one opportunity to participate in treatment by re-entering treatment within 30 days of the refusal to participate.
(b) A person who does not re-enter treatment within 30 days of a refusal to participate or who refuses a second time to participate in treatment shall be ineligible to participate in any department program subject to s. 49.162, Stats., for a period of 12 months. The administering agency shall inform the clerk of courts by affidavit that the person is not eligible to participate in any department program subject to s. 49.162, Stats., for a period of 12 months because the person did not re-enter treatment within 30 days of a refusal to participate or the person refused a second time to participate in treatment.
