PROPOSAL TO DRUG TEST MICHIGAN WELFARE RECIPIENTS IS FULL OF HOLES

Legislation that would require drug testing of welfare recipients
could soon hit the Michigan House's agenda, according to Rep. Jeff
Farrington, R - Utica, who proposed the bill.

Farrington proposed House Bill 5223 in December. That month the
Michigan Department of Human Services released a legislatively-mandated
report indicating that it would be feasible to drug test welfare
recipients. Some type of pre-screen would be necessary, with testing
for recipients suspected of drug use, and the matter of testing hadn't
been worked out, but the department said it is feasible.

What we don't know is the size of the problem this proposal would
address.

The figure we don't know, because the Department of Human Services
either doesn't keep it or won't share it, is how many Michigan welfare
recipients, as a percentage, report failing pre-employment drug screens.

"Sometimes it's not about the size of the problem, it's about the
perception," Farrington told Heritage Media. Farrington said that in
his 50-50 district, drug testing for welfare recipients has
"overwhelming" support.

"My voters don't want to see their tax money being spent on drugs,"
Farrington said.

House Bill 5223 would "require applicants for family independent
program assistance benefits to submit to substance abuse testing
before a final determination of eligibility," according to the
legislation. Refusal to submit to the test would result in denial of
benefits.

The state has experimented with drug testing welfare applicants and
recipients before. In 1999 the state ran a pilot program in 3
counties. "The pilot programs ran from October 1, 1999 until November
10, 1999," explains the DHS's feasibility report. "A total of 435
applicants were tested for the presence of marijuana, cocaine,
opiates, amphetamines, and phencyclidine. Forty-five or 10.3% tested
positive for drug use."

10 percent. For a measly 10 percent of welfare recipients the state is
considering the creation of a multimillion dollar drug testing regime.

Rep. David Rutledge, D - Ypsilanti, described the legislation as
well-intentioned but not well-conceived. He anticipated constitutional
problems if drug testing was a condition of eligibility.

"What's the objective here?" Rutledge asked. "What are you trying to
achieve?"

Rep. Jeff Irwin, D - Ann Arbor, shared those concerns. Irwin said he'd
rather see any money that would be spent on drug testing be used to
eliminate fraud in the welfare system.

Irwin and Rutledge both said Michigan should learn from Florida's
example. Before a federal judge pulled the plug on Florida's drug
testing regime, the state found that some 96 percent of those tested
came up negative for illicit drugs. Only 2 percent of users tested
positive. That case is working its way through the federal court system.

There's also a question of how constitutional the test-em-all approach
proposed in Farrington's bill would be.

The ACLU of Michigan sued the Department of Human Services in federal
court the last time the state rolled out a drug testing program. The
group hasn't indicated whether it would do the same if a testing
regime were reintroduced, but it does have concerns.

ACLU of Michigan spokeswoman Rana Elmir, in an email to Heritage
Media, wrote that "being poor is not a crime in Michigan...studies
show that welfare applicants do not use or abuse drugs at a greater
rate than the general population."

Her email continued: "Many individuals receive money from the
government through grants and special programs, including students and
GM executives. However, we don't force them to go through the
humiliating task of peeing in a cup for government
assistance."

Marchwinski v. Howard, as the case between the ACLU and the DHS was
known, was settled in December 2003. Judge David Lawson laid out how a
constitutionally-acceptable drug testing regime might work in Michigan.

Applicants and recipients facing annual redetermination of their
status would complete a substance abuse survey that the state would
develop. When a person's responses indicate that drug-related barriers
are standing in their way, the person would be matched with a
substance abuse professional. Using an "empirically validated
substance abuse screening tool," that substance abuse professional
would screen for drug use. If drug use is suspected, a test would be
issued. After the test, the substance abuse professional would
determine the appropriate level of treatment and make a referral.

The focus, in Lawson's system, was less punitive and more on the good
of the person seeking help.

But rather than follow Lawson's system, the state simply never
followed through on a pilot program. The consent order between the
ACLU and the state expired on Jan. 1, 2007.

If House Bill 5223 passed it could mean the transfer of millions of
dollars from hit-by-hard-times people and families who need it to
drug-testing firms. As Farrington envisions the system working, the
applicant would be forced to take a drug test upon applying. If he
fails, he can't receive assistance. If he passes, $50 will be taken
from his first assistance check to pay for the drug test.

In fiscal year 2010, the family independence program took on 127,703
cases serving 352,419 Michigan residents, according to state figures.
The program paid out some $413 million in cash assistance. In
Washtenaw County, there were 2,218 cases serving 5,903 county
residents. The program paid out some $5.9 million in cash assistance.

Multiple 127,700 cases by $50 a test and a drug testing regime
would've cost the state, or the state's most vulnerable residents,
upwards of $6.35 million last year, if it had been the law. All to
catch the 2 to 10 percent of the welfare recipients who use drugs.

Add to that the costs of the litigation certain to follow any
test-em-all regime. Heritage Media has filed a Freedom of Information
Act (FOIA) request with the Department of Human Services to see how
much the Marchwinski v. Howard litigation, which overturned the
state's last drug-testing program, ended up costing Michigan
taxpayers. We do know, though, that the state was required to pay
$112,275 to the ACLU to defray attorneys' fees in Marchwinski v. Howard.

How feasible is it?

Under the feasibility study, the recipient pays for the test if it's
positive and the state pays if it's negative. While Farrington's
legislation would deny benefits to applicants and recipients who test
positive, the feasibility study suggests denying benefits to positive
testers until they complete a drug treatment program. (How someone
applying for a few hundred a month in welfare bennies would afford
such treatment is another question.)

One wonders why mouth swab testing, by far the cheapest form of drug
testing available, is never mentioned in the DHS's feasibility report.
DHS won't say. Though a public body running on taxpayer money, DHS
refused to answer even routine follow-up questions regarding the
report it produced, and directed queries back to the
legislature.

Unlike urinalysis or hair follicle testing, mouth swabs trace recent,
rather than historic, drug use. If private sector employers be our
guide, there are employers in Michigan who use this method. If
Farrington's bill were to become law, mouth swab testing would be best
tailored to its stated purpose.

For all the tough talk regarding what employers in the real world
require, neither Farrington nor his colleagues in the legislature, nor
their staffers - trustees of a $45 billion state budget - are required
to submit to drug tests.

Considering that this is the legislature which slashed $470 per pupil
in K-12 spending, during a surplus, in a state that believes education
is essential to its future, if there is any group which could benefit
from drug testing, it is our representatives in Lansing.

This proposal is costly and would shift taxpayer money from needy
families to corporations, to say nothing of the constitutional
concerns. Drug testing welfare users might help the people of Utica
sleep better at night, but their fears shouldn't become our policy.