New drug tests for welfare applicants face hurdles, questions

Florida's plan for drug testing for welfare applicants may face challenges. (The Associated Press file)

A new state law requiring all welfare applicants to be drug-tested goes into effect today — even as opponents say the statute is riddled with problems and will not withstand a legal challenge.

It also could end up creating an expensive court battle for the Department of Children and Families — the state agency charged with administering the federally funded welfare program — in a year when the department already has made $48 million in cutbacks.

The American Civil Liberties Union of Florida, the nonprofit organization considered most likely to challenge the law, has not yet filed suit on the issue, nor will the organization reveal its plan.

"We as a policy don't commit to sue until we actually file," said Derek Newton, the group's communications director.

But the ACLU's written position on such screening is that it's "scientifically, fiscally and constitutionally unsound."

The constitutional standard, Newton said, requires that the government have reason to believe an individual is using drugs before demanding a test. Michigan, the only other state to pass a similar law, had it struck down in court.

In September 2000, a federal judge blocked Michigan's attempt to drug-test welfare recipients, ruling that the law set a "dangerous precedent" under the Constitution. Three years earlier, Louisiana had scrapped a similar requirement, part of an executive order, when threatened with a lawsuit.

And certain counties in Oregon have experimented with drug-testing welfare recipients, but they retreated when officials found cheaper and less invasive ways to ferret out drug users.

Before the Michigan policy was halted, only 10 percent of welfare recipients tested positive for illicit drugs — a rate similar to that found among the general population, according to the ACLU.

About 4,000 Floridians each month may be affected by the new law, which applies only to parents with minor children who request temporary cash assistance. The average benefit check per family is $240 a month with a lifetime limit of 48 months.

The 93,000 state residents already receiving such benefits would not be affected unless they reapply. Applicants for food stamps, Medicaid and other programs also would not be affected.

Some details of the drug-testing law have shifted since the first drafts were made public. Initially, DCF spokesmen said a positive drug test, while disqualifying the applicant from receiving the cash benefits for a year, would not necessarily trigger an investigation by child-welfare workers.

Since then, the department has confirmed that all parents who test positive for drugs — including legal drugs not prescribed for the parent — will be reported automatically to the state's abuse hotline.

Department spokesman Joe Follick said that does not necessarily mean there would be a child-abuse or neglect investigation.

"We're talking about individual families with individual sets of circumstances and often facing life difficulties that most of us can't imagine," Follick said. "You can't make a generalization that, if they're using a particular drug, those kids shouldn't be there. You have to go meet the family, talk with the family and find out what services they need."

Only if there is further evidence that the children are in danger would state workers pursue a case against the parents.

Applicants will have to pay for the drug tests themselves, though those who test negative will be reimbursed in the first benefit check they receive. Those who test positive also would have the chance to get a second, more-sophisticated screening — at their own expense of up to $100 — and have an official medical review of the testing. Follick said it is still unclear whether those expenses would be reimbursed if the applicant is ultimately cleared.

"Our rule-making probably will not be done until mid- to late July," he said. "We'll probably have at least one more public meeting until they're finalized."

It's also uncertain how much help will be available for parents with little or no money to get drug treatment.

Though DCF does contract with treatment centers for a limited amount of services for the indigent, those programs have few or no openings.

"We are constantly full," said Todd Dixon, director of community affairs at the Orlando-based Center for Drug-Free Living, which handles the bulk of Central Florida cases. The nonprofit organization also has to give priority to court-ordered clients and those whose cases are most urgent, such as pregnant women.

"That's the biggest problem with this law in general," Dixon said. "If you're going to implement a policy like this, you also have an obligation to serve the people who need it. And that was not included in the legislation … . There was no additional funding to cover these [welfare] applicants."

In two-parent households, both adults would have to pass drug tests. If they fail, they could ask a third party, such as an adult relative, to apply for benefits that would be used solely for the children. But that applicant, too, would be required to pass the drug screening.

ksantich@tribune.com or 407-420-5503