If the states are vying to see who can pass the toughest standards for government aid to the poor, Georgia has seized the lead.
Gov. Nathan Deal must decide by Tuesday whether to approve the latest example: the nation’s hardest-hitting law on drug testing poor people for public assistance.
Opponents, mostly Democrats, have called the measure “insane,” “mean-spirited,” financially irresponsible and part of a politically motivated war on the poor. Backers, mostly Republicans, call it common-sense legislation that encourages personal responsibility and keeps taxpayer money from those who would spend it on drugs.
Under House Bill 772, Georgia would require an applicant for welfare or food stamps to undergo a drug test — at the applicant’s expense — if he or she raised reasonable suspicion of drug use, including through “missed appointments” or by their “demeanor.”
Since the idea took hold in 2011, a majority of states have considered measures to require people who receive welfare and food stamps to pass a drug test. But the proposals, dogged by questions of expense, constitutionality, efficacy and fairness, have become law only in Georgia and a dozen other states. With Georgia’s first law in 2012 and House Bill 772, the Peach State’s effort is so far the most aggressive, according to an examination of all 50 states by The Atlanta Journal-Constitution:
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- Among all states, only Georgia would require applicants for poverty aid to pay for their own drug tests, even if they pass the test.
- Only Georgia would try to apply those tests not just to welfare recipients but also to the massive population of food stamps recipients.
- Only Georgia and Kansas’ laws would trigger a test on such a vague basis as an applicant’s “demeanor,” as determined by a state worker. (A 2012 Georgia law attempted to drug-test all applicants with or without a suspicion they might use drugs, but courts said that practice was unconstitutional.)
- While some states make a point of trying to fund substance abuse treatment for those who test positive, Georgia’s measure specifies the state will not pay for treatment.
- Georgia legislators approved the bill without calculating whether it would save money, or cost more in administration than it saves, as opponents suggest it will.
The AJC’s analysis does not apply to people convicted of drug felonies, who are treated differently under the law.
In general the laws are new legal territory, and all sides now expect Georgia’s bill to attract a new court challenge, one of several possible costs to the state of the effort.
The benefits, on the other hand, are uncertain, research shows.
House Speaker David Ralston, R-Blue Ridge, acknowledged the state faces a legal battle and that other costs might be lurking in the bill. But he defended HB 772.
“You know, we can’t legislate with one eye on the courthouse,” Ralston said. “You can always find things that you criticize about these measures. The bottom line is, we passed a bill that simply insists on some level of personal responsibility of people who receive public funds for their support and livelihood. I don’t think that’s asking too much, to make sure that they’re not using those funds to buy and use drugs.”
Opponents claim the recipients are not abusing drugs any more than the general population is.
“These are mean-spirited proposals,” said Georgia Sen. Nan Orrock, D-Atlanta, who waged battle against the bill. “This bash-the-poor legislation continues to crop up.”
The cost of Georgia’s drug-testing law
The Georgia Legislature does not know whether this bill will save or cost the state money. Some states, such as Tennessee, estimated the overall financial impact of their bills on the state treasury; Georgia did not.
State Rep. Greg Morris, the bill’s sponsor and a Vidalia Republican in a tough primary fight, said his goal was to protect the responsible working taxpayer from having public money abused. He also believes public assistance rolls are bloated, not by those who lost wages in the recession but by lax federal eligibility standards.
Morris sponsored the bill in the House, and Don Balfour, R-Snellville, sponsored it in the Senate. Neither had any cosponsors, but the bill passed easily, with only Republicans voting in favor.
Balfour pointed out that people often have to undergo drug tests to get a job and said benefits applicants should be no different. As to bearing the costs, he said, “the people who receive the benefits would be the people who would be paying for it.”
But there are costs to the state, too.
For starters, Morris and the other legislators know the bill will rack up lawyers’ fees.
Florida already waged a legal battle, and lost, over its law requiring blanket drug testing. That blanket requirement, that every applicant be tested, violated the Fourth Amendment’s prohibition of unreasonable searches, federal courts found. As a result, states may order tests for people only when they can state a legitimate reason for doing so.
Some states have succeeded, so far.
In Missouri, for example, the local ACLU has decided for the moment not to sue over the state’s 2011 law, which flags welfare applicants for drug tests by directly asking about their drug use. A handful of states use that approach; others use a widely accepted questionnaire developed by specialists.
By contrast, Georgia’s and Kansas’s “demeanor” test is “a recipe for profiling,” said state Sen. Vincent Fort, D-Atlanta. Georgia’s HB 772 reproduces word for word the list of drug-test triggers in a 2013 Kansas law.
Some of the other justifications for testing include whether an applicant missed appointments, was fired for drug abuse or arrested, or has ever applied for a job in an industry that required drug tests. The law does not specify what kinds of “missed appointments” would trigger a test.
‘I try not to get bogged down’
Georgia’s bill applies to both welfare and food stamps, while other states’s laws don’t apply to food stamp applicants. And there’s an additional legal problem with the food stamps provision.
It’s one reason Georgia would be alone in trying to drug-test food stamps recipients, who number 1.7 million in the state, as opposed to just 16,000 welfare recipients. (Many welfare and food stamp recipients would be exempt from testing, such as those in nursing homes; children would stay eligible for their benefits even if their parents failed a drug test.)
The rub for Georgia is that federal food stamp law prohibits the states from adding their own “conditions for participating” in the food stamp program. So Georgia is free to pass a law that adds such conditions, but the law would not have any force until such time as the federal law is changed.
There is strong sentiment in Congress to do just that. The U.S. House has already passed a measure to lift the ban on states adding their own conditions to food stamp eligibility. If Republicans take control of the Senate, the measure would have a shot at passage, which in turn would enable Georgia’s law to come to life.
In Georgia the individual would pay for the test, pass or fail. Estimates of test costs vary, but a common figure discussed is $35. Those on Medicaid would pay only $17, or less if less were charged, but it’s unsure Medicaid would pay the difference. The state would provide a list of qualified testing labs. After a failed test the person would lose benefits until he or she completes rehab and tests negative.
Food stamp benefits are loaded onto an electronic benefit transfer, or EBT, card, which the recipient presents at the store to pay for food. The Georgia law would require that the recipient’s photo be added to EBT cards. Opponents allege that the cost, not funded in the bill, could run into the millions.
Noting the difficulty in buying drugs with EBT card, Jason Williamson, an attorney with the American Civil Liberties Union in New York, called Georgia’s food stamp provision “particularly insane.”
Naturally, its backers disagree.
Asked about the danger of hidden costs, Speaker Ralston said demanding accountability of applicants was more important than such details.
“I mean you know the [alternative] is to not insist on that” — personal responsibility — “so I try not to get bogged down too much in that kind of thing.”
Even conservatives can disagree.
David Holt is the Republican majority whip in the Oklahoma state Senate. He served in George W. Bush’s White House and in 2012 was vilified by Oklahoma liberals for shepherding a state law that temporarily yanks welfare from those who fail a drug test.
His Oklahoma bill did not include food stamps, known officially as SNAP, for Supplemental Nutrition Assistance Program.
“I believe SNAP to be intended to help people literally survive by providing the means to have food,” Holt said in an interview with the AJC. “Perhaps drug testing for SNAP benefits becomes more of a … I hate to use the word punishment, but maybe more of a punishment,” than drug testing for welfare.
The benefit of Georgia’s drug-testing law
Oklahoma has screened welfare recipients for drug tendencies via a questionnaire for more than 15 years, with the intent of getting them help, a spokesman for the Oklahoma Department of Human Services said. Holt’s innovation is now they face the specter of drug tests, too, and the suspension of benefits for failing the test.
Opponents of these measures bridle at their singling out the poor for suspicion of drug use, as opposed to, say, people who receive corporate tax breaks — like the film industry in Georgia — or legislative salaries. They tout research that shows negligible differences in drug abuse rates between benefits recipients and the larger population.
In truth, nobody knows for sure how effective these bills may be.
States with drug testing have rooted out some applicants who failed the test, but the numbers typically are low. It’s impossible to know how many people did not bother applying for benefits because they knew they wouldn’t pass the test. In addition, it’s not possible to determine why a person started an application and then didn’t follow through on it: perhaps it was the prospect of a drug test, or perhaps that person’s financial circumstances changed, or perhaps the person moved away.
Take Utah: Last year 1,588 people were flagged for drug testing, but only 762 took the test, according to a spokesman for the Utah Department of Workforce Services.
But thousands of people who were never flagged for drug testing also dropped out. And the previous year, when testing didn’t exist yet, 7,900 Utahans started to apply, then dropped out.
What Utah does know: At the year’s latest count, midway through the fiscal year, the state had netted five confirmed failed tests.
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