ORDER OF THE
DEPARTMENT OF HEALTH SERVICES
TO ADOPT PERMANENT RULES
The Wisconsin Department of Health Services (department) proposes an order to create ch. DHS 38, relating to drug testing for participants in the FoodShare Employment and Training Program who are able-bodied adults. RULE SUMMARY
Statute interpreted
See “Statutory authority.”
Statutory authority
1. The department shall promulgate rules to develop and implement a drug screening, testing, and treatment policy to screen and, if indicated, test and treat participants in an employment and training program under this subsection who are able-bodied adults for use of a controlled substance without a valid prescription for the controlled substance. The policy shall include at least all of the following elements:
b. If a participant tests negative for use of a controlled substance, or tests positive for the use of a controlled substance but presents evidence satisfactory to the department that the individual possesses a valid prescription for each controlled substance for which the individual tests positive, the individual will have satisfactorily completed the substance abuse testing requirements under this paragraph.
c. If a participant tests positive for use of a controlled substance for which he or she does not have a valid prescription, then the individual must participate in substance abuse treatment to remain eligible for the employment and training program.
d. While participating in treatment, an individual who has tested positive for the use of a controlled substance without a valid prescription for the controlled substance shall submit to random testing for the use of a controlled substance, and the test results must be negative, or positive with a valid prescription, in order for the individual to remain eligible for the employment and training program under this subsection. If a test result is positive and the individual does not have a valid prescription for the controlled substance for which the individual tests positive, the individual may begin treatment again one time and will remain eligible for the employment and training program. If the individual completes treatment and tests negative for use of a controlled substance, or tests positive for the use of a controlled substance but presents a valid prescription for each controlled substance for which the individual tests positive, the individual will have satisfactorily completed the substance abuse screening and testing requirements under this paragraph.
2. Subject to the promulgation of rules under subd. 1., the department shall screen and, if indicated, test and treat participants in an employment and training program under this subsection who are able−bodied adults for illegal use of a controlled substance without a valid prescription for the controlled substance.
Explanation of agency authority
Section 49.79 (9) (d), Stats., directs the department to develop and implement a drug screening, testing, and treatment policy to screen and, if indicated, test and treat participants in an employment and training program within the state’s FoodShare program who are able−bodied adults for use of a controlled substance without a valid prescription for the controlled substance. The department is required to promulgate rules to develop and implement the policy. Related statute or rule
None.
Plain language analysis
Proposed rules may affect abled-bodied adults who need to meet a work requirement for continued FoodShare benefits; income maintenance consortia and FSET contracted vendors that screen and make referrals for testing and treatment; entities that do drug testing; entities that provide substance abuse treatment; and Wisconsin businesses that will benefit by having more individuals ready to be hired and perform work.
Section 49.79 (9) (d), Stats., directs the department to develop and implement a drug screening, testing, and treatment policy to screen and, if indicated, test and treat participants in an employment and training program within the state’s FoodShare program who are able-bodied adults for use of a controlled substance without a valid prescription for the controlled substance. This process will ensure that able-bodied adults who are receiving taxpayer supported workforce training services are work-ready. It will also provide individuals who do test positive for an illegal substance a path to treatment.
No reasonable alternative exists to rulemaking because the Wisconsin Legislature has directed the department to promulgate rules to develop and implement the policy.
Summary of, and comparison with, existing or proposed federal regulations
7 U.S.C. s. 2014 (b) provides:
Except as otherwise provided in this chapter, the Secretary shall establish uniform national standards of eligibility (other than the income standards for Alaska, Hawaii, Guam, and the Virgin Islands of the United States established in accordance with subsections (c) and (e) of this section) for participation by households in the supplemental nutrition assistance program in accordance with the provisions of this section. No plan of operation submitted by a State agency shall be approved unless the standards of eligibility meet those established by the Secretary, and no State agency shall impose any other standards of eligibility as a condition for participating in the program.
21 U.S.C. s. 862b provides:
Notwithstanding any other provision of law, States shall not be prohibited by the Federal Government from testing welfare recipients for use of controlled substances nor from sanctioning welfare recipients who test positive for use of controlled substances.
The proposed rule will operationalize this federally-authorized testing in Wisconsin.
Comparison with rules in adjacent states
The only adjacent state that has passed legislation for drug testing for public assistance recipient 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 on December 2014. There are no administrative rules for this project, which is scheduled to run for one year ending in September, 2016.
Other states 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.
As of March 2016, at least 17 states had proposed legislation requiring some form of drug testing or screening for public assistance recipients that year. These states included: Hawaii, Illinois, Iowa, Kentucky, Massachusetts, Minnesota, Mississippi, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, South Carolina, South Dakota, Vermont, Virginia and West Virginia.
Summary of factual data and analytical methodologies
The department drafted proposed rules based upon the direction given by the Wisconsin Legislature in s. 49.79 (9) (d), Stats.. The department also reviewed chs. DWD 131 and DCF 105, as well as rulemaking documents associated with these chapters.
