Milwaukee Neighborhood News Service

Drug Testing Law In Legal Limbo

Few details available about FoodShare drug testing program.

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FoodShare recipients utilize the Marcia Coggs Center on 12th and Vliet. Photo by Sue Vliet.

FoodShare recipients utilize the Marcia Coggs Center on 12th and Vliet. Photo by Sue Vliet.

Very little is known about how state officials plan to implement a newly minted law requiring them to drug test some food stamp recipients, despite longstanding support from Republican Gov. Scott Walker. Walker recently launched a legal battle challenging federal regulations that prohibit such a law.

The law requires the Wisconsin Department of Health Services to develop and implement policies to drug test those able-bodied adults without dependents who are required to take part in the employment and training program associated with FoodShare, the state’s food stamp program. Recipients who test positive for drugs are required to participate in substance abuse treatment to remain eligible for the employment and training program and are subject to random drug tests, according to the law.

Before Walker signed the bill into law as part of the state budget last month, officials at the U.S. Department of Agriculture, which oversees the federal food stamp program, told the state that drug testing recipients is illegal. Walker’s administration responded by filing a lawsuit, requesting a federal judge to determine if the state has the right to drug test welfare recipients. The plaintiff, Wisconsin Department of Health Services Secretary Kitty Rhoades, argues in the lawsuit that she faces a legal conundrum – either break state or federal law – a conflict created by Walker when he signed the bill into law.

A sign promoting Quest, the state’s food stamp card, is painted on the façade of a Milwaukee corner store. Photo by Brendan O’Brien.

A sign promoting Quest, the state’s food stamp card, is painted on the façade of a Milwaukee corner store. Photo by Brendan O’Brien.

Department of Health Services officials have been unable to provide details on how the agency plans to implement the law, such as what type of drug testing will be conducted, who will perform the tests, who will have access to the test results and what the program is expected to cost.

“The Department of Health Services does not comment on pending litigation,” wrote Claire Yunker, a spokeswoman for the department, in an email.

Several officials at organizations in Milwaukee that help individuals apply for FoodShare benefits said they have no information from the state in regard to the new law.

“We have not heard anything yet,” said a caseworker with the Milwaukee Enrollment Services Center. She did not provide her full name and was not authorized to discuss the issue.

An official with the Social Development Commission in Milwaukee, who asked not to be identified, said that her organization, which helps individuals enroll in entitlement programs, has yet to hear about how the state plans to administer the drug test.

The cost of the federal lawsuit is also unclear. Department of Justice spokeswoman Anne Schwartz said her department will not hire outside lawyers to fight the case and therefore will not be tracking hours and will not know what it costs.

The concept of drug testing welfare recipients in Wisconsin is not new. The governor campaigned on the idea last year and has spoken publicly in favor of drug testing.

“We want people to know the dignity that comes from work. (This program) will encourage personal responsibility and workforce readiness,” he wrote in a budget document describing his line-item vetoes.

Legislation requiring some FoodShare recipients to be drug tested was also introduced in the Republican-led Assembly in April. Legislative documents contained no substantive information on how the law will be implemented and how much drug testing will cost taxpayers. A Legislative Fiscal Bureau report on May 19 noted the lack of details in the proposed measure, including whether all program recipients would be screened, when they would be screened and what role local agencies and counties would have — if any — in administering, enforcing or funding drug testing.

The report also said the state Department of Administration has indicated that some of the program details would be included in a waiver application and through negotiations with federal officials. Wisconsin did not submit a waiver application to the USDA as of Aug. 6, according to federal officials. A waiver is required for a state to change the terms of its food stamp program.

In addition, the non-partisan fiscal bureau detailed some of the legal arguments that could be made if the measure is challenged in court, including the possibility that the law is unconstitutional.

“The Governor’s proposal is suspicion-based, in that it would require a positive screen to administer a drug test, so it is not known whether a court would consider it an unreasonable search,” the report said.

A similar Republican effort in Florida failed both legally and economically. Florida spent more than $45,000 from July to October of 2011 to determine that less than 3 percent of the 4,086 welfare recipients who were tested actually used drugs, according to the New York Times. The state paid $118,140 in reimbursements to recipients who passed drug tests, more than it would have paid out in benefits to the people who failed the test, according to the newspaper. The Florida law has since been struck down as unconstitutional by a federal judge.

“This isn’t a serious policy proposal. This is an attempt merely at partisan politics to help one individual’s ambitions and it’s unfortunate that it comes at the cost of people who need food,” said Michael Bare, a research and program coordinator at the Public Policy Institute, referring to Walker and his presidential campaign.

This story was originally published by Milwaukee Neighborhood News Service, where you can find other stories reporting on fifteen city neighborhoods in Milwaukee.

39 thoughts on “Drug Testing Law In Legal Limbo”

  1. PMD says:

    Here’s hoping they drug test all legislators. How else to explain comments like those of Rep. Jesse Kremer? He has to be on drugs, and he holds public office.

  2. AG says:

    If an unemployed person is going to get a job and get themselves off foodstamps they’re more than likely going to need to do a drug test anyway… I don’t understand the resistance.

  3. PMD says:

    Is that true? What percentage of employers drug test? I was not given a drug test by my current employer, or my last one.

  4. AG says:

    I’ve seen stats of anywhere from 60some percent to almost 90. But those stats could vary depending on if they cover “employers who drug test” vs “employee’s that get tested” and if that’s the case, I’m not sure which is which.

  5. A busdriver says:

    @ AG : REALLY???? IT’S ALREADY ILLEGAL for a reason. Not to mention the prerequisites have not been done. SO what is the point of doing it? NOTHING because it’s just partisan posturing. “The report also said the state Department of Administration has indicated that some of the program details would be included in a waiver application and through negotiations with federal officials. Wisconsin did not submit a waiver application to the USDA as of Aug. 6, according to federal officials. A waiver is required for a state to change the terms of its food stamp program.”

  6. PMD says:

    I’m with A busdriver. It’s pointless, expensive, mean-spirited, and not really about helping people with substance abuse problems. I don’t think GOP legislators or Walker give a crap about people on food stamps.

  7. AG says:

    PMD, I’d like to see the source for that stat they give. According to the Society for Human Resource Management, their own research found that 57% of companies test all employees and a further 14% test certain employee’s. 71% seems a far cry from the 40% that is not cited in that article. Interested how varied these things can be.

    A busdriver, sorry this seems to upset you so much. You never did give a reason for why it should be illegal, let alone why it shouldn’t be done.

    This is fairly straight forward… you want a job, you have to be drug free. Foodshare is supposed to help those who need it because they’re low income or unemployed. It makes sense to make sure those who are unemployed are actually employable so they can support themselves eventually. The ultimate dignity is being able to support and provide for yourself.

  8. PMD says:

    But it’s not that straightforward because not everyone has to take a drug test. People are being singled out. Why not drug test all employees at any company receiving any type of government benefit (tax break/credit, etc)? If the point is truly to help people get off drugs because drugs are bad and the scourge of society, make everyone take a drug test.

  9. AG says:

    Even the government drug tests all new employee’s.

    There is nothing requiring someone to take a drug test. The only requirement is if you want government assistance. It’s like going through security at an airport… you aren’t being forced to go through the check.. you’re only forced to go through if you want to ride a plane. Apparently that’s an acceptable legal standard regarding constitutional rights. Something tells me drug testing all of society or putting all of society through random security checkpoints on the side of the road would not hold up.

  10. PMD says:

    As the Wash Post story points out, why then don’t we drug test everyone seeking any form of government assistance?

  11. AG says:

    PMD, your article is really inspiring regarding our need to change tax laws. However, it doesn’t address the idea that drug testing unemployed foodshare recipients can help ensure they’re actually employable.

  12. PMD says:

    Why don’t we drug test everyone seeking any form of government assistance? And in other states this has been costly while also not generating many failed drug tests. Isn’t a solution in search of a problem? How is that responsible small government?

  13. AG says:

    I get it, really I do. Some people just don’t like the idea of any requirements being necessary to earn government benefits. This is just like the opposition to requiring people to be actively job seeking or in a training program to receive assistance. Even if it helps the recipients, since it’s a requirement it must be bad.

    I guess we’re going to come to terms with the idea that we have differing opinions on what standards must be met to receive direct benefits.

  14. Casey says:

    I could be missing something but the requirement is only for able bodied residents seeking food share, it mentions nothing about being unemployed. There’s plenty of already employed people with an EBT.

  15. AG says:

    So states like Arizona where they first ask a questionnaire about drug use, only require a test of those who say they use drugs, and then when almost every single person who is required to take the test decides to withdraw? All that situation shows us is 30some people were dumb enough to still take the test after admitting they did drugs.

    If your statistics showing the effectiveness of these laws is how many people are dumb enough to do that then you need to re-examine your criteria.

  16. PMD says:

    I’m not sure you get it. It’s the fact that it’s singling people out and not requiring a drug test of everyone seeking government assistance. And I don’t understand people who are all for smaller government and less government meddling in people’s lives, but also want the government to do things like drug test food stamp recipients. That makes as much sense to me as demanding presidential candidates sign a pledge to never ever raise taxes.

  17. AG says:

    Casey, it’s foodshare recipients who take part in the FoodShare Employment and Training Program

  18. A busdriver says:

    @ AG: “A busdriver, sorry this seems to upset you so much. You never did give a reason for why it should be illegal, let alone why it shouldn’t be done.” No you’re not. I did not say it should be illegal I said it IS. Did you even read the above article are are you just commenting? If you are not going drug test everyone then you drug test NO ONE. Not to mention it is a waste of money & resources unless you own a drug testing lab. Follow the money. Scooter or one of his cronies own a drug testing lab?

  19. AG says:

    Always jumping to that smaller government no meddling argument.

    I want to make sure that we, as a community, including through our government, are there to help people in need. But in doing so, we should provide for them the opportunity (and actively encourage) for people to work themselves out of their situation of need. The program is designed to help people become employable if they aren’t now. Being drug free is part of that. If you want to do drugs, fine… but don’t ask for a handout to support you if you won’t try to work towards supporting yourself.

    Drug testing is only part of the program… I don’t see anyone saying “Oh, training these people for job skills is singling them out! Why don’t we require job skill training of everyone who gets government assistance like mortgage interest deductions??”

  20. AG says:

    @A Busdriver: I really am sorry you’re so upset about this. I wish you were glad we are testing people, not upset at the idea.

    So you don’t think it should be illegal? OK, glad we’re on the same page. And there is a legal basis for this if you read Schimel’s summary regarding testing for controlled substances of welfare recipients.

  21. PMD says:

    But AG it’s an argument that conservatives constantly make.

  22. A Bus Driver says:

    @AG: AGAIN did you read the above article???? Did you read my reply to you?? WE are Not on the same page. Reply after you read the article & understand what has been written. If you need glasses to read PUT them ON if you have a pair.

  23. Dave says:

    I hope when you go to collect your social security and sign up for Medicare, AG, they make you piss in a cup first to determine if you’re worthy of “a government handout”.

  24. AG says:

    When I apply for my social security I’m going to be “singled out” by having to prove that I’m 65, blind, or disabled… Why don’t we make people who get a mortgage deduction prove they’re disabled like we do social security??

  25. A busdriver says:

    @AG Read the article AGAIN. We are NOT on the same page. “Before Walker signed the bill into law as part of the state budget last month, officials at the U.S. Department of Agriculture, which oversees the federal food stamp program, told the state that drug testing recipients is illegal. “

  26. AG says:

    @A Busdriver: you’re right, we’re NOT on the same page at all. You see, I not only read the article, but I read the complaint filed by Schimel as well. The lawsuit (which is what this article is actually about) states that the direction from the AG is in conflict with one act of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 which states “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.”

    It’s right in the summary and easy for anyone to see.

    http://www.doj.state.wi.us/sites/default/files/2015-news/Complaint%20FINAL%20pdf-91513.pdf

  27. AG says:

    Sorry, meant Dept of Ag not “AG”

  28. PMD says:

    I’ll sleep much better at night once I know these scofflaws aren’t ripping off taxpayers anymore. To hell with real, actual problems.

  29. AG says:

    I’ll sleep better knowing people have a chance at free dug treatment and will be offered help to become employable productive members of society. That’s pretty important to me and I consider it an actual problem.

  30. PMD says:

    Unemployment is an actual problem, unlike food stamp recipients being lazy drug addicts.

  31. AG says:

    I know, how dare we train people with work skills and make sure they’re employable by not testing positive for drugs… and even if they test positive we don’t do anything except get them treatment for their habit. What sort of evil state is this?? Besides, we could be doing more productive things like blocking the sale of abandoned MPS buildings to charter schools or passing additional gun control laws that won’t be enforced!

  32. PMD says:

    I am all for training people. Never said otherwise. Not sure what that has to do with making them take a drug test. You are going a little off the rails AG. I’m a little concerned.

  33. AG says:

    Training for job skills and drug testing are both part of the program. Both “single out” people who receive foodshare benefits and are unemployed. Just because you’re complaining about just one of those, doesn’t make them any different…. they are both aimed at helping people be employable. That’s what I support.

    It’s been fun, but the long weekend begins now!

  34. PMD says:

    I also support getting people trained and helping them find jobs. Drug testing doesn’t need to be part of getting people trained and employed. The idea that people are being held back from employment because they are lazy bums getting high all day is not true. So we have an expensive program that’s a solution in search of a nonexistent problem. Doesn’t sound fiscally conservative.

  35. A busdriver says:

    It’s the Republican way. Harrass poor people under the guise of help. Pure Bull.

  36. Alene Bidwell says:

    Just came across this story which proves, once again, it is a complete waste of money to do all that testing. That money would be better spent getting people more skills to get better jobs.

    WASHINGTON — Early results are in for a new welfare drug testing regime in Maine: They caught the guy.

    From April through June, the state only attempted to screen 15 out of about 5,700 Temporary Assistance for Needy Families recipients, according to an Associated Press investigation published Thursday, and just one person tested positive.

    One single cup of dirty urine out of a pool of thousands of recipients might seem surprisingly low, but it’s actually typical. Welfare drug testing schemes never catch a significant number of drug users.

    http://www.huffingtonpost.com/entry/maines-welfare-drug-tests_55ce1b56e4b0ab468d9d266f?kvcommref=mostpopular

  37. A busdriver says:

    I repeat a waste of money & resources unless you own a drug testing lab. Follow the money. Does Scooter own stock in or one of his cronies own a drug testing lab?

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