By Sealy Smith Submitted
For decades, federal policymakers and state administrators of governmental assistance programs have been concerned about the “moral character” and worthiness of beneficiaries. Prompted by tight state and federal budgets, some policymakers have recently shown a renewed interest in conditioning the receipt of governmental benefits on passing drug tests. On December 13, 2011, the State House of Representatives passed a provision that would have authorized states to require drug testing as an eligibility requirement for certain unemployment benefits, including Temporary Assistance for Needy Families (TANF) block grants, the Supplemental Nutrition Assistance Program (SNAP, formerly Food Stamps), the Section 8 Housing Choice Voucher program, and their precursors. Lawmakers in the majority of states proposed legislation in 2011, that would require drug testing beneficiaries of government assistance under certain circumstances; Mississippi being one of them. However, it was not the only concerned state. Mississippi lawmakers turned to other states, to see how this situation was being handled and the results of these actions. In both Florida and Michigan, a program has been implemented in the past. In both situations, there have been complications. In October 1999, Michigan implemented this program that was halted by a temporary restraining order from a District Court. The order was filed on the grounds that drug testing was unconstitutional under the Fourth Amendment. The Florida law, which became effective July 1, 2011, faced an injunction by a U.S. District Judge just three months later. Additionally, results in Florida show that the program cost Florida tax payers more than it saves because of the very few applicants that were actually found positive for drugs. Based on the case law described above, state or federal laws that require drug tests as a condition of receiving governmental benefits without regard to an individualized suspicion of illicit drug use may be susceptible to constitutional challenge. Drug tests historically have been considered searches, for the purposes of the Fourth Amendment. The reasonableness of searches generally require individualized suspicion. Exceptions including situations in which government can show a special need warranting a deviation from the norm. However, governmental benefit programs like TANF, SNAP, unemployment compensation, and housing assistance do not naturally evoke the special needs that the Supreme Court has recognized in the past. The TANF program, administered by the Mississippi Department of Human Services (MDHS), provides assistance for needy families with children up to age 18 without regard to race, creed, color, gender, age, disability or national origin. Monthly TANF money payments are made for children and their needy caretaker relatives who do not have enough income or resources to meet their everyday needs by state program standards. Several lawmakers argue that the solution lies in the MDHS. “As someone who works first hand within this system, I understand how important it is for those receiving government aid to be deserving,” said Charlie Smith, who serves as Mississippi Department of Human Services legislative liaison. He said he wants Mississippians to know the facts about state aid recipients. “The idea of drug testing all state recipients sounds reasonable, but it would require more money for something that DHS already requires from recipients.” As part of the eligibility for TANF and SNAP, the applicant must attest to the fact that neither they nor any member of the household has been convicted of a drug-related felony committed since August 22, 1996. The eligibility worker informs all TANF applicants and recipients about the specific provisions of the drug/substance abuse treatment policy and the potential penalties if the individual fails to report drug use and is later found in noncompliance due to a substance abuse problem or drug felony conviction. The state then conducts a series of data exchanges through the Department of Corrections, as well as other agencies, to determine if there are matches identified between their records and the Department of Human Services’ clients. If an individual receiving benefits has been incarcerated, the match is received by the eligibility staff to investigate further for drug felony related convictions. In the event of a match, appropriate action in determining eligibility for services must be taken. A TANF recipient who does not admit that he/she has a problem and fails an employer’s drug test will be sanctioned from receiving benefits. Any participant who is determined to have a substance abuse problem either by an employer, potential employer, or through any other method after their initial opportunity to request the treatment exemption has been declined, will receive a TANF work sanction and corresponding SNAP, formally Food Stamp Program, sanction. A claim is prepared on recipients who fail to report any household circumstances related to eligibility for the program. The individual is sanctioned and must repay the portion of the benefits that they were not eligible to receive. “These programs are meant to assist people temporally until they are able to stand on their own. Our job is described best in the cliche, we are helping people help themselves,” said Smith.