Hunger Task Force

Ending Hunger is Our Mission

Drug Testing for FoodShare (food stamps)

Drug Testing for FoodShare (food stamp) recipients

Governor Scott Walker is moving ahead with his plan to drug test applicants for FoodShare. This tactic has been tried across the country and has proven to be illegal, costly and ineffective. Hunger Task Force knows that hunger is a serious issue in Wisconsin. It is not limited to urban communities. Hunger Task Force believes that drug testing as a condition to families putting food on their table is not a Wisconsin value.

What does Governor Scott Walker’s plan do?

Able bodied adults without dependents would be required to pass a drug test or drug screening before receiving food aid. You can read the proposed rule from our Department of Health Services (DHS) here.

Who would this impact?

An “able bodied” adult without dependent is between the ages of 18 and 49, does not have a disability and does not live with a child in the household. Over 66,000 low income Wisconsinites would be required to submit to drug screening in order to receive food aid. Our Department of Health Services (DHS) estimates that 97% of those subjected to drug screening will not need it. DHS further estimates that only 0.33% of those screened will test positive for controlled substances. By their own estimates, DHS proves that subjecting those struggling with hunger to drug screening and testing is not needed.

Here’s why Hunger Task Force opposes Drug Testing for FoodShare (food stamps):

  • It violates the 4th Amendment of our U.S. Constitution.
    • Wisconsin citizens have a right to be secure from unreasonable government searches absent legal justification.
    • The government should not force thousands of law-abiding FoodShare recipients to drug testing absent probable cause.
    • Wisconsin residents struggling to feed their families should not be required to surrender their constitutional rights or their privacy in order to receive FoodShare.
  • Drug screening and drug testing FoodShare recipients is a violation of Federal law.
    • What does the law state? DHS is not allowed to impose additional application requirements as a condition of FoodShare eligibility.[1]
      • DHS defines “individuals” impacted by this policy as those who “intend on meeting the work requirements through participation in the food stamp (sic) employment and training program.”
      • Non-exempt Able-Bodied Adult without Dependents (ABAWD) must comply with work requirements to remain eligible for FoodShare. Mandating drug testing as a condition of FoodShare Employment and Training (FSET) is tantamount to requiring drug testing as a condition of FoodShare eligibility.
    • When Walker first pushed drug testing for FoodShare, top USDA administration officials of the stated that “The law clearly does not allow it.” It will require an act of Congress for DHS to legally drug test FoodShare recipients.
    • DHS cites 21 USC §862b as federal authorization for drug testing FoodShare recipients in Wisconsin. This interpretation is not accurate.
    • DHS wrongly interprets 21 USC §862b[2] to allow Wisconsin define FoodShare as welfare.
    • The Personal Responsibility and Work Reconciliation Act of 1996 (PRWRA) did not include a definition of “welfare” in this section.[3]
      • PRWRA did include the food stamp act in its definition of “welfare and public assistance program” in 911.
      • PRWRA also defined “federal public benefits” in 401 noting welfare and food assistance separately.
      • PRWRA does not provide a definition of “welfare” in the section DHS is relying on for authorization.[4] The USDA has interpreted this section to not include SNAP/FoodShare recipients.
  • Drug testing FoodShare recipients is a wasteful and inefficient use of taxpayer dollars.
    • Other states have proposed drug testing low income residents seeking state or federal assistance. No state has seen a high percentage of individuals test positive. Drug testing has been costly to other states without producing results that show significant drug use or abuse among applicants and recipients. State mandated drug testing on low income individuals seeking assistance is administratively burdensome, often results in lengthy litigation, and fails to produce positive test results.
      • Missouri spent $493,000 on drug testing in 2013. 20 tests were positive out of 32,511 applications (0.06% identification rate, $24,650 in state tax dollars per positive test).
      • Utah prescreened 4,730 applicants and, based upon screening results, ordered drug testing for 466 people. Utah spent $25,000 to identify 12 failed tests out of those 466 prescreened applications (2.6% identification rate, $2,083 per positive test).
      • Oklahoma spent $82,700 to identify 83 failed tests out of 1,890 applicants (4.3% identification rate, $996.38 per positive test).
    • DHS estimates that of 66,200 ABAWD’s who would be screened each year, only 220 would fail the drug-test. Wisconsin DHS estimates a treatment cost of $853,700 annually, with $356,200 falling on county human services agencies. Local agencies would need to shoulder an additional $99,700 annually for drug testing. DHS is silent as to how much it will cost for additional IT hours to “automate the questionnaire through the CARES system” and the additional staffing responsibilities to county Income Maintenance (IM) consortia and Milwaukee Enrollment Services.
  • FoodShare recipients are already “work-ready.”
    • DHS states that this rule will benefit small business by increasing the number of workers that are ready to be hired and perform work.
    • FoodShare recipients are working.
      • Among households with at least one working-age, non-disabled adult, more than half work while receiving FoodShare— and more than 80 percent work in the year prior to or the year after receiving FoodShare.
      • 58% of households receiving benefits start to work within the month that they start to receive benefits.
    • FoodShare recipients do not lack work readiness. In many areas, they lack available long term employment. While federal law requires ABAWDs to either work or participate in programs such as FSET, the law allows exemptions for areas experiencing high unemployment. 3 cities and 10 counties in Wisconsin are “Labor-Surplus Areas.” Drug testing does not create jobs.
    • Many ABAWDs participate in FSET and have part-time jobs. They are clearly work ready, but would now be subjected to drug screening and testing.
  • Drug screening and subsequent drug testing will increase hunger in Wisconsin.
    • This rule will cause people to drop off the FoodShare program.
    •  DHS fails to provide clarity over implementation of this rule. Confusion, complication and stigma will be added to a critical program for all FoodShare recipients, even those who aren’t required to submit to a drug test.
      • DHS fails to state how administering agencies will determine possible drug use or prior drug use.
      • DHS was previously placed in corrective action from the USDA based upon an Alcohol & Other Drug Abuse (AODA) screening tool used in the FoodShare Employment and Training Program. Specifically, the USDA required corrective action of the FSET Additional Assessment form which screened for prior AODA use noting, “Additionally, a history of drug or alcohol abuse, as opposed to current use or abuse, is a recognized disability protected under the ADA and Section 504.”
      • DHS also fails to detail how the questionnaire will be administered for non-English speaking individuals or individuals who are illiterate.
      • The proposed rule fails to provide necessary detail on how drug testing will be implemented. Where will drug testing occur? What type of drugs will be included in drug screening and testing? Will transportation be provided? What constitutes good cause? What will happen to the sample after it is used for the drug test?
      • Currently, FoodShare members who have a pending exemption receive a referral to the FSET (FoodShare Employment & Training) program as non-exempt ABAWDs. Will they also be drug screened under this new rule even though they are exempt from FSET?
    • Wisconsin does not have a good track record of success in smoothly implementing new requirements for FoodShare recipients. People have been wrongfully discharged from the program. Citing agency error, ABAWD fair hearing requests have skyrocketed. The USDA placed DHS in corrective action over FSET civil rights and implementation failures. Participation at food pantries and meal programs spike when policies change and people drop off FoodShare.

Want to do something about this?

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[1] 7 C.F.R. §273.2(a)(1)
[2] 21 USC §862b, provides: “Notwithstanding any other provision of law, States shall not be prohibited by the Federal Government for testing for use of controlled substances nor from sanctioning welfare recipients who test positive for use of controlled substances.” This section was enacted as part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, and not as part of the controlled substances act.
[3] See e.g. PRWRA §902.
[4] See e.g. Chevron USA v. Natural Resources Defense Council, Inc. 467 US 837 (1984). If Congress hasn’t addressed the matter, the agency’s interpretation of a regulation or statute it administers should be provided deference.