BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2389
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          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  









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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