BILL ANALYSIS �
AB 2469
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Date of Hearing: April 24, 2012
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
AB 2469 (Grove) - As Amended: April 17, 2012
SUBJECT : CalWORKs eligibility: periodic drug testing
SUMMARY : Requires applicants for and recipients of cash aid
under the California Work Opportunity and Responsibility to Kids
(CalWORKs) program to undergo periodic drug testing as a
condition of eligibility. Specifically, this bill :
1)Requires an applicant for or recipient of CalWORKs cash
assistance-including a caretaker relative who is included in
the assistance unit, both parents in a two-parent household,
and a teenage parent who is not required to reside with a
parent, legal guardian, or other caretaker-to undergo periodic
drug testing, as defined, to determine the presence or absence
of specified controlled substances and prescription medication
for which the individual does not have a valid prescription.
2)Requires the Department of Social Services (DSS) to notify
CalWORKs applicants and recipients about, and authorizes DSS
to conduct informational sessions to explain, the drug testing
requirements.
3)Requires drug testing to be conducted with a reasonable level
of dignity and requires reasonable efforts to make the process
as easy as possible for applicants and recipients.
4)Provides that initial drug testing shall be done with 48
hours' notice, and that recipients shall be subject to one
random drug test per year, with 48 hours' notice.
5)Requires applicants and recipients to pay for drug testing,
subject to reimbursement if the test results are negative.
6)Provides that, in the case of a positive drug test, the
individual must be provided with a list of local licensed
substance abuse treatment providers, and shall be ineligible
to receive cash benefits for one year unless the individual
provides proof that he or she has successfully completed a
licensed substance abuse program, in which case the individual
may reapply after six months.
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7)Provides that the state shall bear the cost of substance abuse
treatment up to the maximum amount the individual would have
received in CalWORKs cash benefits, for the period of the
treatment.
8)Provides that if an individual has a second positive drug test
after regaining eligibility, the individual shall be
ineligible to apply for or receive cash benefits for three
years.
9)Provides for the continuation of aid for otherwise eligible
children in the household, with the aid to be paid to another
adult on behalf of the child or children subject to the
approval of the county welfare department.
10)Requires the county welfare department to report the results
of an applicant's or recipient's positive drug test to the
appropriate child welfare services agency.
EXISTING LAW
1)Establishes the CalWORKs program to provide cash assistance
and welfare-to-work services to qualified households.
2)Permits, under the federal Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 (Public Law 104-193;
Welfare Reform Act) and the Temporary Aid to Needy Families
(TANF) program, substance abuse testing of welfare recipients.
21 U.S.C. � 862b.
3)Excludes from CalWORKs eligibility a person who has been
convicted since December 31, 1997 of a drug-related felony.
Welfare & Institutions (W&I) Code � 11251.3.
4)Authorizes counties, if a participant in CalWORKs is
determined to have a substance abuse problem interfering with
the individual's ability to transition from welfare to work,
to require participation in a program providing substance
abuse treatment services. W&I Code � 11325.8.
FISCAL EFFECT : Unknown
COMMENTS : The author cites a 2004 UCLA White Paper finding that
0.6% of CalWORKs recipients were willing to admit to
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stimulant/opiate use, while urine tests showed that 10.6% were
found to be involved in stimulant/opiate use.<1> Substance Use
and Abuse Prevalence among CalWORKs Participants: Treatment
System and Welfare Program Perspectives, UCLA Integrated
Substance Abuse Programs, Department of Psychiatry and
Biobehavioral Sciences (August 2004) (White Paper). The author
asserts that "�i]t is unfair to expect taxpayers to give away
their hard-earned income to support someone's drug addiction.
Drug users need help, not a handout to continue their
destructive addiction. If they choose not to seek help, then
taxpayers should not be forced to subsidize that poor choice."
Changes in welfare policy since 1996-97 include drug treatment
In their joint letter in opposition to this bill, the California
State Association of Counties (CSAC) and county Welfare
Directors Association (CWDA) say that "counties today have
processes in place to identify and respond to substance abuse by
recipients, including treatment programs they work with
regularly. This is a marked departure from the old,
pre-welfare-reform Aid to Families with Dependent children
(AFDC) program." This bill, CSAC and CWDA say, "would take a
punitive approach that runs counter to recommendations by
experts in the field." CSAC and CWDA further explain that:
Federal welfare reform, implemented in California in
1998 as the CalWORKs program, reflected a sea change.
The new focus on "welfare to work" required county
staff to not only process checks but also work with
parents to get them into the workforce, often for the
first time, and to identify barriers to their
----------------------
<1> Data are limited, but these percentages may not be
significantly different from those for the general population.
California data from State Estimates of Substance Use from the
National Surveys on Drug Use and Health show past-month illicit
drug use for adults age 18 and above at 9.00% and, for adults
age 18-25, at 20.78%. U.S. Dept. of Health & Human Services,
Substance Abuse & Mental Health Services Administration
(SAMHSA), Office of Applied Studies
( http://oas.samhsa.gov/2k8state/stateTabs.htm ); see also,
National Institutes of Health Press Release, 1996
( http://www.nih.gov/news/pr/oct96/niaaa-23.htm ) ("Proportions of
welfare recipients using, abusing, or dependent on alcohol or
illicit drugs are consistent with proportions of both the adult
U.S. population and adults who do not receive welfare.").
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employment-such as substance abuse, mental health
issues, learning disabilities, and domestic violence.
According to CSAC and CWDA, over the past 10 years, the
percentage of CalWORKs parents receiving substance abuse
services has tripled, and counties are now spending about $50
million a year on treatment.
County eligibility workers are trained to screen for several
different needs when applicants apply for CalWORKs aid. The
program offers services that include transportation vouchers to
get to and from work, child care, resume making classes, and
mental health treatment. In particular, eligibility workers are
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 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.
There is reason to believe that California's CalWORKs program
has been successful in addressing substance abuse among
participants. A national survey on worker substance abuse
conducted by SAMHSA found, for example, that the rate of
past-month substance abuse among unemployed persons (18.6%) was
double the prevalence in other employment statuses (9.2%).
Worker Substance Use and Workplace Policies and Programs, DHHS
Publication No. SMA 07-4273, Analytic Series A-29, SAMHSA,
Office of Applied Studies (2007), p. 11
( http://www.samhsa.gov/data/work2k7/work.pdf ). The 10.6%
prevalence rate among CalWORKs recipients cited by the author of
this bill from the UCLA study is well below the national
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prevalence rate of 18.6% among unemployed persons. This
suggests that the cash aid and services, including substance
abuse treatment, available to CalWORKs recipients have been
successful in preventing the rate of substance abuse that is
otherwise found among unemployed persons. By cutting off
individuals with a positive drug test from CalWORKs aid and
employment services, this bill may be counterproductive by
increasing stressors that are risk factors for substance abuse.
UCLA Study
The UCLA White Paper cited by the author does not support the
approach taken by this bill. The White Paper noted, first, that
urine tests indicate recent drug use; however, "�r]ecent drug
use alone does not necessarily imply addiction or dependence,
which are indicators of need for treatment." Id. at 12. This
bill does not distinguish between those in need of treatment
from others who test positive for drug use.
The UCLA White Paper did not recommend drug testing of all
CalWORKs recipients. To the contrary, in a follow-up report,
the researchers conclude that "screening and assessment for
substance abuse should be targeted to those at highest risk for
problematic use and substance abuse treatment should be one of
multiple interventions to address their diverse personal
problems." Impact of Welfare Reform on Access to Medical Care,
Mental Health Services, and Substance Abuse Treatment for
CalWORKs Participants with Substance Use Problems: Final
Report, Integrated Substance Abuse Programs, Department of
Psychiatry and Biobehavioral Sciences (August 2005) (Final
Report), p. viii. In addition, the Final Report takes a
remedial rather than punitive approach. It does not recommend
sanctioning CalWORKs recipients in need of substance abuse
treatment by cutting off cash aid. For example, the Final
Report says: "On a favorable note, problematic substance use
was not associated with greater difficulties negotiating the
CalWORKs system. Those at elevated risk of problematic use were
not more likely than those at lower risk to be denied benefits."
Id. at 20. The Final Report emphasizes the need to improve
access to treatment, concluding that the "provision of CalWORKs
substance abuse and mental health specialized supportive
services is not only a welfare policy issue, but also an
integral component of health care policy." Id. at vii.
State and national drug testing laws
In a recent policy brief, CLASP, a national nonprofit low-income
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policy and advocacy organization, reported that, in the last few
years, legislators in at least 27 states have proposed
suspicionless drug testing for TANF recipients, with some even
extending drug testing to recipients of other public benefits as
well, such as unemployment insurance, medical assistance and
food assistance. TANF Policy Brief: Random Drug Testing of TANF
Recipients is Costly, Ineffective and Hurts Families, CLASP
(February 3, 2011) (CLASP Policy Brief).
The federal Welfare Reform Act permits states to test welfare
recipients for substance abuse. Notably, however, the federal
law neither requires drug testing nor suggests that testing need
not otherwise meet constitutional standards. As discussed
below, statutes in at least two states that require
suspicionless drug testing as a condition of welfare eligibility
have been enjoined on federal constitutional grounds.
Constitutionality of suspicionless drug testing
In Chandler v. Miller (1997) 520 U.S. 305, the United States
Supreme Court held that a Georgia law requiring candidates for
designated state offices to certify that they have taken a drug
test and that the test result was negative was unconstitutional.
The court noted the "uncontested point" that the drug-testing
requirement, imposed by law and enforced by state officials,
effects a search within the meaning of the Fourth and Fourteenth
Amendments. Id. at 313. "To be reasonable under the Fourth
Amendment, a search ordinarily must be based on individualized
suspicion of wrongdoing." Id. The court held that
suspicionless drug tests may be permissible where public safety
is substantially at risk-for example, in the case of bus or
train operators. The court emphasized that the special need for
drug testing must be important enough to override the
individual's privacy interest, sufficiently vital to suppress
the Fourth Amendment's normal requirement of individualized
suspicion. However, "where ? public safety is not genuinely in
jeopardy, the Fourth Amendment precludes the suspicionless
search, no matter how conveniently arranged." Id. at 323.
In October 2011, a federal district court issued a preliminary
injunction blocking enforcement of a Florida statute that would,
like this bill, require all applicants for TANF benefits to
submit to suspicionless drug testing. Lebron v. Wilkins (M.D.
Fla 2011), 2011 U.S. Dist. LEXIS 124818. Plaintiffs alleged
that the drug-testing program violated the Fourth Amendment's
prohibition against unreasonable searches. In issuing its
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injunction, the court rejected the various arguments offered by
the state that mandatory suspicionless drug testing was in the
public interest. In response, the court said: "Perhaps no
greater public interest exists than protecting a citizen's
rights under the Constitution." The court concluded that the
state had not demonstrated a substantial special need to justify
the wholesale, suspicionless drug testing of all applicants for
TANF benefits. The Lebron case is in accord with a prior
federal district court decision enjoining enforcement of a
similar Michigan statute conditioning the receipt of welfare
benefits on submission to suspicionless drug testing on Fourth
Amendment grounds. Marchwinski v. Howard (E.D. MI 2000) 113
F.Supp.2d 1134 (affirmed by, on rehearing, Marchwinski v. Howard
(6th Cir. 2003) 60 Fed.Appx. 601).<2>
A federal bill now pending in Congress-the Welfare Integrity Act
of 2011 (H.R. 3193)-would require all 50 states to drug-test
welfare applicants. A provision of the federal bill would
require applicants or recipients to sign a waiver of
constitutional rights with respect to the testing. This
provision implicitly acknowledges that suspicionless drug
testing of welfare participants does, in fact, violate such
individuals' federal constitutional rights.<3>
While purportedly targeting those who abuse drugs, this bill, in
fact, impacts the constitutional rights of all CalWORKs
applicants and recipients by subjecting them to suspicionless
drug testing. As the U.S. Supreme Court has held, a
drug-testing requirement, imposed by law and enforced by
government officials, effects a search within the meaning of the
Fourth and Fourteenth Amendments. Absent extraordinary
---------------------------
<2> Although drug testing laws are not primarily enacted for
fiscal reasons, there is evidence from Florida to suggest that
the cost to the state of paying for drug tests of those who pass
exceeds the amount that would have been paid out in benefits to
those who fail. See No Savings are Found from Welfare Drug
Tests, New York Times (April 17, 2012)
( http://www.nytimes.com/2012/04/18/us/no-savings-found-in-florida
-welfare-drug-tests.html ).
<3> Moreover, as the court in Lebron v. Wilkins (at pp. 18-19)
noted, obtaining consent to an otherwise unconstitutional search
in exchange for TANF (or CalWORKs) benefits would violate the
doctrine of "unconstitutional conditions," which prohibits
denying benefits if the termination is based on motivations that
other constitutional provisions disallow.
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circumstances, drug testing must be based on reasonable
suspicion of illicit use. The only criterion for drug testing
under this bill is the fact that an individual has applied for
or is receiving CalWORKs aid. Poverty is not reasonable grounds
under the Constitution to suspect an individual of drug
addiction or abuse.
Arguments in opposition
In opposing this bill, the Coalition of California Welfare
Rights Organizations (CCWRO) says that this bill would require
suspicionless searches by the government that are prohibited by
the Fourth Amendment. The only level of suspicion created here,
CCWRO notes, is that families "have to apply for assistance to
help them ? make it through tough times." The National
Association of Social Workers-California Chapter says that this
"unfairly criminalizes all CalWORKs recipients by assuming a
stereotype of drug use."
The CLASP Policy Brief cited above concludes that proposals for
mandatory drug testing of TANF (CalWORKs, in California)
recipients is a poor use of resources because: they are based
on false stereotypes that drug abuse is particularly prevalent
among TANF beneficiaries; drug testing is expensive and
inefficient; drug testing not based on individualized suspicion
is likely unconstitutional; and sanctions put vulnerable
children and treatment at risk because without benefits,
families may be unable to meet children's core basic needs,
including housing and clothing, and sanctions deter people from
reporting an abuse issue and seeking treatment. The Drug Policy
Alliance makes similar points in its opposition to this bill.
CSAC and CWDA identify numerous other practical problems with
drug testing, including the fact that many commonly used tests
do not test for prescription medications. Even if detected,
counties would then be required to obtain otherwise confidential
information from the participant or their physician on
prescriptions written for them to determine whether the use of a
particular medication was authorized.
The Western Center on Law & Poverty (WCLP) argues that this bill
"would put children and youth at risk for food insecurity and
benefit decreases have even been shown to increase the risk of a
child being hospitalized. CalWORKs benefits are already
dangerously low, putting children in extreme poverty which has
long-lasting negative impacts." WCLP says that research in one
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state suggested that "children might be unintentionally harmed,
because drug testing might deter parents from applying for
benefits, and at times testing becomes a barrier to accessing
proper treatment." Citing Drug Testing Public Assistance Program
Participants, Idaho Dept. of Health & Welfare (February 4,
2011).
Prior bills
AB 730 (Grove 2011), SB 384 (Benoit 2009), and AB 2389 (Benoit
2008) - These similar bills would have required random drug
testing of all CalWORKs recipients and denied aid if the
recipient refused to attend or failed a one-year mandated drug
treatment program. AB 730 was referred to the Assembly Human
Services Committee but was not heard at the request of the
author. SB 384 died in the Senate Human Services Committee. AB
2389 died in the Assembly Human Services Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
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Opposition
American Association of University Women
California State Association of Counties (CSAC)
Coalition of California Welfare Rights Organizations (CCWRO)
County Alcohol and Drug Program Administrators Association of
California
County Welfare Directors Association of California (CWDA)
Drug Policy Alliance
National Association of Social Workers-California Chapter
Western Center on Law & Poverty (WCLP)
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089