BILL ANALYSIS AB 2389 Page 1 Date of Hearing: April 1, 2008 ASSEMBLY COMMITTEE ON HUMAN SERVICES Jim Beall, Chair AB 2389 (Benoit) - As Amended: March 13, 2008 SUBJECT : CalWORKs Eligibility: drug testing SUMMARY : Requires random drug testing of all CalWORKs recipients and denies aid if the recipient refuses to attend or fails a one-year mandated drug treatment program. Specifically, this bill : 1)Requires recipients of CalWORKs aid to undergo random drug testing, by "random selection basis," as defined. 2)Specifies that if a recipient fails a drug test, he/she must successfully complete a state Department of Social Services (Department) approved one-year drug treatment program and remain drug-free through the program; and 3)States that if the recipient fails to complete the drug treatment program, the recipient's aid will be discontinued. 4)Defines: 4) "Drug" as any one of numerous controlled substances classified under Schedule I and II of the Health & Safety Code, or any prescription medication for which the individual does not have a prescription. 4) "Drug testing" as a chemical test administered for the purpose of determining the presence or absence of a drug or its metabolites in a person's bodily tissue, fluids, or products. 4) "Random Selection Basis" as a mechanism for selecting recipients for drug testing that results in an equal probability that any recipient from a group of recipients subject to the selection mechanism will be selected, and does not give the department discretion to waive the selection of any recipient selected under the mechanism. EXISTING LAW AB 2389 Page 2 1)Permits, under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Welfare Reform Act) and the Temporary Aid to Needy Families program, substance abuse testing of welfare recipients. 2)Allows counties, if a recipient is determined to have a substance abuse problem, to assign a recipient to a substance abuse program and sanction the recipient if he or she is not satisfactorily complying with the criteria for participation in the welfare-to-work activities. (California Code of Regulations, Chapter 42-700.571, 42-700.81, 42-721.2 -50) 3)States, under a State of California Legislative Counsel opinion, that random drug testing of Aid to Families with Dependent Children and Food Stamp recipients is a violation of both the United States and California Constitutions. [Ops. Cal. Legis. Counsel, No. 24022, (June 23, 1995] 4)Provides, under case law, that "suspicionless" drug testing of applicants for and recipients of public assistance benefits is an unconstitutional search and seizure under the Fourth Amendment of the United States Constitution. [Marchwinski v. Howard, 60 Fed. Appx. 601 (6th Cir. 2003)] 5)Allows counties, if they reasonably suspect drug or alcohol dependence, to require applicants and recipients of General Assistance to undergo screening and treatment programs as a condition of receiving aid. [Welfare & Institutions Code 17001.51] 6)Declares, under the United States Constitution, that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, be searched, and the persons or things to be seized." [US Constitution, Amendment IV] 7)Declares that, under the California Constitution, "All people are by nature free and independent and have inalienable rights. Among those are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." [CA Constitution Article I, 1] 8)Declares that, under the California Constitution, "The right AB 2389 Page 3 of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized. [CA Constitution Article I 13] FISCAL EFFECT : Unknown COMMENTS : Background According to the author, the impetus for this bill was the author's There Ought to be a Law contest. RJ Feild, a constituent, submitted the winning essay, entitled "RJ's Law," by mandating random drug testing for all individuals who are collecting payment from welfare. The essay describes how Mr. Feild was born weighing barely over two pounds, addicted to heroin and with traces of additional drugs in his system, a result of the drug abuse of his biological mother. He explains that because of the premature birth, he is afflicted with spastic triplegic cerebral palsy, a condition that requires him to move around with the assistance of a wheelchair. Mr. Feild believes that his biological mother should not have received welfare aid while abusing drugs. He proposes that RJ's Law will "?break the destructive cycle of supporting drug addicts with public assistance monies." Specifically, this bill requires a random drug test and, if a recipient fails, they must either elect to successfully complete a year-long drug treatment program or forfeit their cash aid grant. The sponsor of this bill, the Office of the San Bernardino County Sheriff-Coroner, states that "Drug abuse is very prevalent in San Bernardino County among those receiving some type of government aid. This is a huge cost to the taxpayers and burdens the judicial system as well. This bill will help reduce the abuses of the CalWORKs program." Current Law: Changes Since Welfare Reform in 1996 Stories like Mr. Feild's are deeply disturbing. The health and AB 2389 Page 4 well-being of children is one of the primary purposes of the California Work Opportunity and Responsibility to Kids program (CalWORKs). Indeed, the name of the program reflects that policy. Welfare used to be an entitlement program known as Aid to Families with Dependent Children or AFDC. The county eligibility workers who processed these entitlement benefits were principally concerned with calculating the correct benefit amount. The 1996 federal welfare reform law established Temporary Aid for Needy Families program (TANF) and changed "welfare as we know it." This shift was the result of federal policymakers wanting to minimize welfare dependency and eliminate the entitlement. The TANF program is basically an employment services program with time-limited cash assistance for families as the adults move from welfare to work. The TANF welfare reform acknowledges that welfare families need education, training, and supportive services to make this transition. The State of California calls its welfare program "CalWORKs". The reforms included broad authority for states and counties to provide services and federal policymakers recognized that substance abuse treatment as one of those. The federal government also allowed states to drug test welfare recipients, if they choose to do so. Counties report that substance abuse treatment is critical in helping a recipient beat their drug dependency and meet their responsibility to their children through employment. The County Substance Abuse Program Process County eligibility workers are trained to screen for many different needs when applicants apply for CalWORKs aid. The program offers numerous services from cash for daily needs, transportation vouchers to get to and from work, child care, resume making classes, and mental health treatment. In particular, eligibility workers are specially trained to identify drug dependency in applicants or current recipients. This identification process continues throughout a recipient's tenure to assure that any dependency issues are addressed. The law provides that any time an eligibility worker is concerned that a recipient has a substance abuse problem that will interfere with their ability to find or keep a job, that person must be referred to a county drug treatment program and they are AB 2389 Page 5 to do the evaluation and determine what treatment is necessary. The regulations further provide that once the county has evaluated that someone has a substance abuse problem, their welfare-to-work plan must be based on that evaluation, and may include "appropriate treatment requirements." The failure to comply with treatment requirements may trigger consequences for the recipient. For example, a recipient who has been determined to have a substance abuse problem, based on an evaluation, and whose case plan included a requirement to attend treatment, could be sanctioned for failure to participate in that treatment program. In 1997-98, the first year that the substance abuse program services were offered, only $1 million of the $22 million allocated was utilized. Two years later as the program matured, the allocation grew to $107 million and 99% of that amount was utilized. Since then, utilization of the program's services has consistently been trending up. Other States: Unconstitutionality The Welfare Reform Act specifies that states can drug test welfare recipients if they choose to do so. This bill requires random drug testing of the entire CalWORKs caseload. In 1999, the state of Michigan passed legislation that would have launched a statewide random drug testing program of its welfare recipients. In response, the American Civil Liberties Union (ACLU) sued and the law was ultimately struck down (Marchwinski v. Howard, 60 Fed. Appx. 601 (6th Cir. 2003)). In this ruling, the court found that "suspicionless" drug testing of applicants for public assistance benefits is unconstitutional search and seizure under the Fourth Amendment of the United States Constitution. While the ruling of the 6th Circuit is not binding precedent in California, a state which is located in the 9th Circuit, it does represent how federal courts in other regions are handling this issue. For the Marchwinski v. Howard case, the Drug Policy Alliance (Alliance) conducted a nationwide survey of state drug testing policies with respect to public benefits, revealing that the other 49 states used alternative, less intrusive methods to detect drug abuse among welfare applicants and recipients. The Alliance study was introduced as evidence in the ACLU brief and AB 2389 Page 6 was cited by the United States District Court in its decision to strike down Michigan's drug testing policy as unconstitutional. State of California: Unconstitutionality In 1995, California's Legislative Counsel opined on the same matter as the Marchwinski v. Howard case and came to the same conclusion: for drug testing of welfare recipients to meet the constitutionality test, it must be based on a reasonable suspicion. If there is no reasonable basis for the drug test, then it would be considered an unreasonable search and seizure in violation of the Unites States Constitution's 4th Amendment. The opinion also found that random drug testing violated California's privacy law under the Article I, Section I of its Constitution. Recent Studies A 2000 report by Mathematica indicates that conducting substance abuse screening continually throughout a person's tenure in the welfare-to-work program and working collaboratively with recipients to identify substance abuse and establish treatment goals is critical. The report recommends taking a positive approach that does not place the screening and treatment in a punitive light and that treats the recipients with dignity and respect. This is important because substance abusers, particularly women, often suffer from low self-esteem and face other issues such as depression, learning disabilities, and a history of domestic violence. They may be reluctant to seek help, especially if they face more than one of these barriers, as often is the case, and singling out the substance abuse problem and targeting only that issue will be less effective than identifying all of the issues and responding to them appropriately. These recommendations are consistent with the approach that CalWORKs takes today. In the aftermath of Welfare Reform in 1996, the State of Florida made the decision to obtain empirical data to guide its policy on how to treat drug abuse among individuals seeking TANF benefits. To obtain this data it initiated a demonstration drug screening and testing program for these applicants. The demonstration was to answer two questions: Are the individuals who apply for temporary cash assistance or services likely to abuse drugs? Does such abuse affect employment and earnings and use of social service benefits? The findings showed only small AB 2389 Page 7 differences in employment, earnings, and use of government services between individuals who tested positively and those who tested negatively for substance abuse. In addition, evidence is presented that suggests that there is very little difference in employment, earnings and use of government services between users of different kinds of drugs. Opposition arguments The ACLU states that this bill is scientifically, fiscally, and constitutionally unsound. It specifies that "Random drug testing has been found time and time again to be in effective at identifying drug abusers." The ACLU adds that forty-nine states have rejected a drug testing program for a variety of fiscal and practical reasons: at least 21 states concluded the program could be unlawful; 17 states cited cost concerns (average of $42 per person tested); 11 states did not consider drug testing; and 11 states gave a variety of practical and operational reasons. It specifies that resources should be directed at increased training for welfare workers to better detect substance abuse and greater assistance and treatment to those who need help. The California Welfare Directors' Association (CWDA) acknowledges that substance abuse can certainly be a serious issue experienced by CalWORKs program recipients. However, it has several concerns with the approach taken by AB 2389. First, it says that counties today have processes in place to identify and respond to substance abuse by recipients, including treatment programs that they work with regularly. CWDA states that this is a marked departure from the old, pre-welfare-reform AFDC program. It adds that AB 2389 would take a punitive approach that runs counter to recommendations by experts in the field and the bill's reliance on random drug testing would not only be extremely costly, but research suggests that it would be largely ineffective as well. Finally, it would likely be found unconstitutional if challenged in court. The California State Association of Counties (CSAC) states that the bill's broad mandate to conduct random drug testing would be costly, time consuming, and would divert precious funds away from core CalWORKs goals. CSAC adds that counties may already conduct drug testing for individual recipients if a caseworker suspects drug abuse and that there is a significant shortage of one-year long substance abuse treatment programs and no additional federal, state, or local funds are available to fund AB 2389 Page 8 services described in the bill. REGISTERED SUPPORT / OPPOSITION : Support San Bernardino Co., Sheriff-Coroner (Sponsor) CA Police Chiefs' Association CA Peace Officers' Association Opposition American Civil Liberties Union CA Family Health Council CA Nurses Association CA Welfare Directors' Association CA Public Defenders Association (CPDA) California State Associations of Counties (CSAC) County Alcohol and Drug Program Administrators Assoc. of CA Planned Parenthood Mar Monte Planned Parenthood Affiliates of CA (PPAC) Western Center on Law & Poverty Analysis Prepared by : Frances Chacon / HUM. S. / (916) 319-2089