Posted: April 12, 2018 at 6:01 pm

New Law Mandating Drug Testing of Welfare Recipients Falls Short

By Jaz Brown and Mitchell Blahut

In 1989, Kirstin Nething’s grandmother was pregnant with her second child. As a single parent with an infection that kept her bedridden, she lost her job at West Virginia University and had no way to make a living. Her daughter, who was 15, had to get a job cleaning for their neighbors. The family had to rely on relatives for food and assistance until they became eligible for the Temporary Assistance for Needy Families (TANF) program and were provided with food stamps for six months. The experience was humiliating, but it kept the family alive. Kristin’s mother (the 15-year-old who cleaned houses), was eventually able to go to college. She now has a master’s degree and a great job with Mylan Pharmaceuticals.

Nething and her mother say a recently enacted state law mandating the drug testing of new TANF recipients will only further stigmatize and humiliate families who need state assistance. She and her family are not the only ones who oppose the 2016 law passed by the West Virginia state legislature that mandates “suspicion based” drug testing of TANF recipients as part of a three-year pilot program.  Many critics say the new law is both discriminatory and a waste of taxpayer money. Out of 1,710 new applicants between October 23, 2017 and March 30th of this year, 242 were selected for testing and only 24 tested positive for drugs, according to officials at the Department of Health and Human Resources (DHHR), which administers the testing. That means that 14.1 percent of new TANF applicants were chosen for drug testing and only 1.4 percent of applicants tested positive.

“Not only is the law based on a stigma that is verifiably false, we know from a number of studies that people in the lowest income actually use [drugs] at a slightly lower rate than the general population,” says Eli Baumwell, Policy Director of the American Civil Liberties Union (ACLU) of West Virginia. “[This law] perpetuates that stigma by suggesting that the mere need to be on public assistance somehow makes these people more suspect than anyone else.”

The Trump administration recently announced a proposal that would require those receiving benefits from the Supplemental Nutrition Assistance Program (SNAP), another food and financial assisting welfare program, to undergo drug testing. Those targeted by this proposal, if it’s passed, would be people who are able-bodied adults without dependents and applying for some specialized jobs.

Wes Virginia Legislators who support the pilot drug testing for TANF recipients believe that the program will help to identify those who need help, regardless of the low numbers.

“We have a serious drug problem in this state,” says House Delegate Cindy Frich, (R-51st district). “I feel like, being a good guardian of the tax dollar, this will help people that need the help to seek assistance.”

However, public health experts say the mandatory drug testing law is taking the wrong approach to curbing the drug epidemic in West Virginia, which has the highest rate of drug overdoses in the country.

“It starts from a negative position, as if there is causation or an association between poverty and drugs,” says Laurie Andress, Assistant Dean of the School of Public Health at WVU. “It seems like it’s not going to deal with the real issue which is the poverty in West Virginia, the lack of jobs and the need to give people other options than taking drugs.”

West Virginia state officials plan to spend an estimated $50,172 to conduct drug tests on TANF applicants within the first year of the trial program, which began last fall, and $22,172 for subsequent years. Officials estimate that 390 new applicants will test positive for drug use within the first year.

However, given the fact that only 24 have tested positive thus far, critics doubt the accuracy of this estimate. The tests are averaging less than five drug-positive applicants per month. That would net far below the expected number of drug-positive recipients state officials expect. And even if a few TANF recipients do test positive, what they need is treatment and support, not punishment, experts say.

“We shouldn’t be treating [drug addiction] as something where we punish people, where we pull benefits from people,” Baumwell says.

State officials choose TANF applicants who are to be tested based on their responses to a 14 yes-or-no questionnaire. These questionnaires are only for adult and emancipated minor applicants. Applicants who fail the drug test will be put on a three-strike system, the third strike (or failed compliance) means that recipients lose their TANF benefits for life.

A picture of the 14-part questionnaire used by officials at the WVa. DHHR to decide which applicants should undergo a drug test, based off their results.

The West Virginia questionnaire was developed after Florida’s ACLU chapter sued the state on the grounds that “suspicionless-based drug testing” was unconstitutional and violated TANF applicants’ Fourth Amendment rights. In 2012, the federal District Court of Florida ruled in favor of the ACLU, following a similar Michigan ruling in 2003.

The West Virginia chapter of the ACLU say they may consider suing the state if a TANF applicant comes forward with a valid legal complaint.

“We can’t challenge a law unless you’ve got someone who’s been harmed by the law,” says Baumwell.

Baumwell, Andress and others believe that the most effective way of fighting drug addiction is to provide adequate treatment resources for those who want to kick the habit.

“These are individuals who are struggling with disorders and probably need more help,” Baumwell says. “We should be doing everything in our power to enable them to get into a stable situation.