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 emergency and proposed rules impose 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 emergency and proposed rules are 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 emergency and proposed rules are 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. Place Where Comments are to be Submitted and Deadline for Submission
Comments may be submitted to Phyllis Fuller, Bureau of Child Support, Division of Family and Economic Security, Department of Children and Families, 201 E. Washington Avenue, A200, Madison, WI, 53703 or Phyllis.Fuller@wisconsin.gov. The comment deadline is March 18, 2016.
