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
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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
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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
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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
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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
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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
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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
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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