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Tennessee Trial Lawyers Association

New Law Requires Drug Tests for Welfare Recipients

On July 1, a new law went into effect in Tennessee that requires drug tests for welfare benefits applicants. According to this story in The Tennessean, ten people were affected by the new law during its first month in existence.

The former Senator Stacey Campfield, who originally authored the law, thinks that it is a step in the right direction. His intent was to keep state tax dollars from supporting drug abuse and to get drug abusers the help that they need.

However, opponents of the law say that it is unfair and violates individual privacy rights. Hedy Weinberg, executive director of the ACLU says the group intends to fight the law in court.

To help you understand the law, we have prepared a brief summary. We will keep track of the new law and will follow up with some of the policy arguments for and against it, along with some of the legal challenges that may be raised.

History of the Law
  • The law was signed by Governor Bill Haslam on May 21, 2012.
  • The law ordered the Tennessee Department of Human Services to develop a plan and regulations to implement drug testing as part of the application process for public benefits.
  • On July 1, 2014 the regulations that were created by the Department of Human Services went into effect.
What the Law Says About Drug Testing
  • The law itself is fairly vague. In essence, it orders the Department of Human Resources to develop a policy and regulations with some limited guidance. Most of the substance of the “law” is contained in those regulations (Chapter 1240-01-57 Families First Eligibility- Drug Screening and Testing).
  • The drug testing law applies to benefits under the Families First/TANF program.
  • The drug testing law only applies to new applications for benefits. A new applicant is “an applicant who has not received prior cash assistance under the Families First/TANF program or has not received cash assistance under the Families First/TANF program for at least one month due to case closure, for any reason, prior to the application date.” Rule 1240-01-57-.02(20)
  • All new applicants over 18 must fill out a drug screening questionnaire. This is a self-reporting system. The questionnaire asks about recent drug use and any employment denials or terminations caused by a failed drug test.
  • Drug Testing is only done if there is “reasonable suspicion.” Reasonable suspicion is established if an applicant answers “yes” to any of the questions.
Applicants’ Options Under the Law
  • An applicant may refuse to fill out the questionnaire at all. This will result in the denial of benefits. This was the case with four of the ten individuals denied benefits in July.
  • An applicant may fill out the questionnaire and pass. If the applicant answers “no” to all of the questions, benefits will be approved, as long as all other requirements are met.
  • An applicant may fill out the questionnaire and fail. If an applicant answers “yes” to any of the questions, they must submit to a drug test in order to receive benefits. If they refuse the test or if they fail the test, benefits will be denied.
A Positive Drug Test
  • The same sample is re-tested by a Medical Review Officer (MRO) who is a licensed physician. Taking into account the applicant’s medical history and valid prescriptions, the MRO either confirms that the test is positive or that the initial test was in error.
  • If the MRO cannot confirm that the test is positive for drug use, then the applicant receives benefits.
A Confirmed Positive Drug Test
  • If the applicant does nothing, the person is denied benefits.
  • If the applicant still wants to pursue benefits, the Department of Human Services must refer the person for a substance abuse evaluation.
Substance Abuse Evaluation
  • If the evaluation shows that the applicant does not need drug treatment, then benefits will start.
  • If the evaluation shows that the person needs drug treatment, then the applicant must enter a treatment program or benefits will be denied.
Substance Abuse Treatment
  • If the applicant proves that he or she has enrolled in a drug treatment program within 10 days of the results of the substance abuse evaluation, then benefits can still start.
  • The applicant may be on a waiting list for a treatment program and receive benefits for up to six months while waiting to enter treatment.
  • If the applicant fails to enter, complete or follow the rules of the treatment program, then the applicant is denied benefits and cannot reapply for six months.
  • If the applicant completes the drug treatment program, the applicant must submit to another drug test. If that drug test is positive, then benefits are denied.
Protective Payees
  • If the benefits are for a minor child, the State will not cut off the benefits for the child because of the parent failing the drug test.
  • Instead, the benefits are paid to a third party for the use of the minor child. That third party cannot have been denied benefits under this same law.
  • There is some assistance available with child services if the parent enters a drug abuse program as part of this law.
Confidentiality
  • The results of the drug tests under this law should be protected from disclosure to law enforcement, in legal proceedings and for any other public or private use.
  • The results can be used in other proceedings for Families First/TANF, including proceedings about the protection of children and for reporting child abuse, child sexual abuse or child neglect.

Please feel free to contact us with any questions that you might have. Call him today at (865) 691-2777 or use the convenient contact form below.

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