Plain language analysis
Proposed rules may affect: abled-bodied adults without dependents who need to meet a requirement for continued FoodShare benefits; income maintenance consortia and FSET contracted vendors that screen and make referrals for testing and treatment; entities that do drug testing; entities that provide substance abuse treatment; and Wisconsin businesses that will benefit by having more individuals ready to be hired and perform work.
Wis. Stat. 49.79 (9) (d) directs the Department to develop and implement a drug screening, testing, and treatment policy to screen and, if indicated, test and treat participants in an employment and training program within the state’s FoodShare program who are able−bodied adults for use of a controlled substance without a valid prescription for the controlled substance.
This process will ensure that able-bodied adults without dependents who are receiving taxpayer supported workforce training services are work-ready. It will also provide individuals who do test positive for an illegal substance a path to treatment.
No reasonable alternative exists to rulemaking because the Wisconsin Legislature has directed the Department to promulgate rules to develop and implement the policy.
Summary of, and comparison with, existing or proposed federal regulations
21 U.S.C. § 862b provides:
Notwithstanding any other provision of law, States shall not be prohibited by the Federal Government from testing welfare recipients for use of controlled substances nor from sanctioning welfare recipients who test positive for use of controlled substances.
The proposed rule will operationalize this federally-authorized testing in Wisconsin.
Comparison with rules in adjacent states
The only adjacent state that has passed legislation for drug testing for public assistance recipient is Michigan. In 1999, Michigan passed a law requiring all applicants for Michigan’s Temporary Assistance for Needy Families program, the Family Independence Program, to undergo drug testing. That law was declared unconstitutional in a decision that held Michigan law authorizing suspicionless drug testing of welfare recipients was unconstitutional because it was not intended to address public safety, and the state’s desire to address substance abuse as a barrier to employment was not a special need sufficient to justify departure from the Fourth Amendment requirement of individualized suspicion. While initially reversed on appeal to the 6th Circuit Court of Appeals, the initial decision was vacated when the 6th Circuit Court decided to hear the case en banc. The full court split 6-6 without decision, and the effect was to affirm the District Court’s decision and order.
In 2014, the Michigan legislature authorized a new three-county pilot project to evaluate drug testing of applicants for public assistance based on suspicion, and the bills were signed into law on December 2014. There are no administrative rules for this project, which is scheduled to run for one year ending in September, 2016.
Other states have adopted administrative rules relating to drug testing and treatment of recipients of public assistance include North Carolina, Tennessee, and Missouri. Unlike Wisconsin where the enabling statute addresses participation in work experience programs, the North Carolina, Tennessee, and Missouri rules determine eligibility to receive cash benefits.
As of March 2016, at least 17 states have proposed legislation requiring some form of drug testing or screening for public assistance recipients this year. The states include: Hawaii, Illinois, Iowa, Kentucky, Massachusetts, Minnesota, Mississippi, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, South Carolina, South Dakota, Vermont, Virginia and West Virginia.
Summary of factual data and analytical methodologies
The Department drafted proposed rules based upon the direction given by the Wisconsin Legislature in Wis. Stat. 49.79 (9) (d). The Department also reviewed chs. DWD 131 and DCF 105, as well as rulemaking documents associated with these chapters. Analysis and supporting documents used to determine effect on small business
None. The proposed rules impose no compliance or reporting requirements on small businesses.
Effect on small business
None. The proposed rules impose no compliance or reporting requirements on small businesses.
Agency contact person
Al Matano, Medicaid State Plan Coordinator and Administrative Rules Coordinator
Wisconsin Medicaid Program, Department of Health Services
Statement on quality of agency data
See “Summary of Factual Data and Analytical Methodologies.”
Place where comments are to be submitted and deadline for submission
Comments may be submitted to the agency contact person that is listed above until the deadline given in the upcoming notice of public hearing. The deadline for submitting comments and the notice of public hearing will be posted on the Wisconsin Administrative Rules Website at http://adminrules.wisconsin.gov after the hearing is scheduled. RULE TEXT
SECTION 1. Chapter DHS 38 is created to read: SUBSTANCE ABUSE SCREENING, TESTING AND TREATMENT FOR CERTAIN DEPARTMENT EMPLOYMENT AND TRAINING PROGRAMS
DHS 38.01 Purpose. The purpose of this chapter is to establish a process to screen for, and, if appropriate, test for the use of controlled substances by applicants for certain employment and training programs administered by the department, and to refer individuals determined to be abusing a controlled substance to a treatment provider for a substance abuse assessment and evaluation and appropriate treatment as required by s. 49.79 (9) (d), Stats. DHS 38.02 Definitions. In this chapter:
(1) “Able-bodied adult” or “able-bodied adult without dependents” has the meaning given in s. 49.79 (1) (am), Stats. (2) “Administering agency” means single county consortia under s. 49.78 (1r), Stats.; multicounty consortia under s. 49.78 (1) (br), Stats.; tribal governing body under s. 49.78 (cr), Stats. (3) “Confirmation test” or “confirmed test” means an analytical procedure used to quantify a specific controlled substance or its metabolite in a specimen through a test that is different in scientific principle from that of the initial test procedure and capable of providing requisite specificity, sensitivity, and quantitative accuracy to positively confirm use of a controlled substance.
(4) “Controlled substance” or “substance” has the meaning given for “controlled substance” in s. 49.79 (1) (b), Stats., and 21 USC 802 (6). (5) “Department” means the department of health services.
(6) “Employment and training program” or “food stamp employment and training program” or “program” in this chapter has the meaning given in s. 49.79 (9), Stats. (7) “Food stamp program” has the meaning under s. 49.49 (1) (c), Stats. (8) “Individual” means a person who is an able-bodied adult and who has been referred to participate in an employment and training program.
(9) “Medical review officer” means a licensed medical provider employed by or providing services under contract to a drug testing vendor who has knowledge of substance abuse disorders and laboratory testing procedures and who has the necessary training and experience to interpret and evaluate an individual’s positive test result in relation to the individual’s medical history and current, valid prescriptions.
(10) “Metabolite” means a chemical present in the body when a controlled substance is being broken down through natural metabolic processes that can be detected or measured as a positive indicator that a controlled substance associated with the metabolite has been used.
(11) “Screening” means completion of a questionnaire regarding the individual’s current and prior use of controlled substances.
(12) “Specimen” means tissue, fluid, or a product of the human body capable of revealing the presence of controlled substances or their metabolites.
(13) “Treatment” means services that are conducted under clinical supervision to assist an individual through the process of recovery from controlled substance abuse and may include screening, application of approved placement criteria, intake, orientation, assessment, individualized treatment planning, intervention, individual or group and family counseling, referral, discharge planning, after care or continuing care, recordkeeping, consultation with other professionals regarding the patient’s treatment services, recovery and case management, crisis intervention, client education, employment, and problem resolution in life skills functioning.
(14) “Treatment program” means a program certified to provide treatment for controlled substance abuse as a medically managed inpatient service under s. DHS 75.10, a medically monitored treatment service under s. DHS 75.11, a day treatment service under s. DHS 75.12, an outpatient treatment service under s. DHS 75.13, a transitional residential treatment service under s. DHS 75.14, or a narcotic treatment service for opiate addiction under s. DHS 75.15. (15) “Treatment provider” or “provider” means a provider of treatment services for controlled substance abuse certified by the department under the provisions of ch. DHS 75, a provider certified under s. 440.88, Stats, or other licensed professional who meets the requirements of SPS 163. DHS 38.03 Information about the requirement for controlled substance abuse screening, testing, and treatment. An administering agency shall provide information in a format approved by the department to any individual who expresses interest in or is referred to participate in an employment and training program to explain the requirement for participants in certain employment and training programs to undergo screening, testing, and treatment for abuse of controlled substances.
