Despite two unfavorable opinions from the state’s attorney general — and litigation surrounding similar measures in other states — a Republican initiative to require drug testing for welfare applicants is continuing to gestate in the state legislature.
A bill that would have required drug testing for those seeking unemployment benefits was withdrawn last week.
The idea to test welfare applicants cropped up last year as well, with the support of Lt. Gov. Ron Ramsey, but eventually failed. This year it’s being pushed by Rep. Julia Hurley (R-Lenoir City) in the House and Sen. Stacey Campfield (R-Knoxville) in the Senate.
Last week, Hurley begrudgingly agreed to delay a vote on the bill in the House Health Committee at the request of members who had lingering concerns about the details of the legislation. It also gave them time to further review a seven-page amendment, which made mostly technical changes.
Campfield’s version of the bill is awaiting action by the Senate’s finance committee.
The bill would require Tennesseans over the age of 18 who are applying for Temporary Assistance for Needy Families (TANF) to submit to, and pay for, a drug test before receiving financial assistance. There is also a provision in the proposed amendment that would allow the Department of Human Services to drug test current recipients “if the department has reason to believe” that individual “has used illegal drugs.”
If recipients test positive for a drug for which they don’t have a valid prescription, they would not be able to reapply for benefits for a year. If they test positive again at that point, they would be ineligible for three years. However, applicants who complete a drug treatment program after a negative test would be able to reapply after six months.
There is an exemption for individuals who successfully passed a drug test for an employer within the previous 45 days, and any positive test must be verified by a confirmation test, paid for by the applicant. In the event that a parent tests positive, the bill allows for them to appoint a blood relative or legal guardian to receive benefits on behalf of their children.
The DHS estimates that 3,577 individuals (around 6 percent of the 58,000 adults they expect to test) would test positive and be sanctioned for a full year. Given that the average monthly amount of benefits for an adult receiving TANF funds is $40, they estimate a decrease in recurring state expenditures resulting from withheld benefits would be total more than $1.7 million.
Hurley touted that number to the House subcommittee, but was rebuffed by members who noted that, according to a fiscal review of the bill, the DHS has reached the cap for allowable administrative costs and that “any cost avoidance resulting from this bill would be used to serve TANF eligible clients, resulting in an equal increase in state expenditures, for a net impact of zero on TANF funds.” The updated fiscal note also estimates an average annual increase in state expenditures of $402,716.
According to the U.S. Department of Health and Human Services, most estimates find that 5 to 10 percent of welfare recipients have some sort of substance abuse problem.
Some committee members also called into question the estimated number of positive tests, arguing that they seemed rather high compared to the results of similar drug-testing programs in other states.
Indeed, a similar program in Florida resulted in only 2 percent of welfare applicants testing positive, far lower than what the state had predicted, according to The Tampa Tribune. That law required the state to reimburse those individuals for the cost of the test — about $30 a piece — and the state just managed to break even on the program.
As it’s currently written, Hurley and Campfield’s bill has no such reimbursement provision, meaning that drug-free applicants would be left paying a cost nearly equal to the amount of monthly benefits they’re seeking.
During the subcommittee debate, Hurley said her bill was most like one passed last year in Missouri, however that law, like one in Arizona, only requires testing for anyone the state “reasonably” suspects of drug use. At the time it was passed, the state estimated that law would cost Missouri close to $2 million in its first year. Estimates on how much the bill would save the state were not available.
Putting the uncertain financial impact aside, the bill’s biggest hurdle will likely be a legal one. The DHS itself predicts, in a fiscal note, that “passage of the bill would result in legal action against the state,” with costs exceeding $100,000. Opponents of the bill have scoffed at that number, saying the state’s legal troubles are sure to cost much more if the governor signs it.
The reason for their certainty on that point is based in the two opinions issued by Tennessee Attorney General Robert Cooper and the legal entanglement that has played out in states like Florida and Michigan.
In 2000, a pilot program in Michigan was declared unconstitutional by the 6th U.S. Circuit Court of Appeals on the grounds that suspicionless drug testing of TANF applicants and recipients constituted an unconstitutional search and seizure under the Fourth Amendment. Hurley downplayed this ruling to the committee, calling the Michigan program “obviously unconstitutional” because it required testing only in three of the state’s poorest counties. But in his opinion, Cooper says the fact that the program was a pilot program was not relevant to the court’s decision.
In Florida, a federal judge last year issued a temporary injunction, halting that state’s drug-testing program on the same grounds. The program’s legality is currently being contested in court, and the outcome will likely serve as a strong legal precedent going forward.
But Hurley and Campfield are as yet undeterred. When confronted with the attorney general’s first opinion in a House subcommittee, Hurley said she didn’t consider it a “validated opinion.” She was no more convinced by the second, choosing instead to hang on to the assurance of the committee’s vice chair, Rep. Matthew Hill, who told her the bill was “98 percent there” legally.