Senate panel approves H.B. 2388, mandatory drug testing for TANF recipients

Working through a crowded agenda on Monday (March 26), the Oklahoma state Senate Committee on Health and Human Services sent forward a wide range of legislation, including one aiming to implement required drug testing for certain welfare recipients.

House Bill 2388 is a measure relating to “poor persons; requiring drug screening of applicants for state-provided assistance.” The bill would require drug tests of recipients in the program Temporary Assistance to Needy Families (TANF). 

State Sen. Rick Brinkley of Owasso, a member of the committee, presented the bill on behalf of state Sen. David Holt of Oklahoma City, a Republican, who was unable to attend the hearing. A committee substitute was approved that removed a provision that had prevailed in the state House, requiring drug tests also be applied to politicians seeking election to the state House and Senate.

After approving the committee substitute, the panel heard from policy analysts for two state “think tanks” with expertise in government spending and social policy. 

Kate Richey of Oklahoma Policy Institute, a progressive group based in Tulsa, said a similar policy exists or has existed in some states, with the longest experiences with such a policy coming from Michigan and Florida. The Fourth Amendment of the U.S. Constitution is a common basis for challenge to such legislation, she said. In Michigan, where a similar law was in effect after the early 1990s, the state incurred significant legal costs to defend the measure. 

The Congressional Research Service points to cost shifting as a concern for drug testing mandates on the poor when individuals (rather than a subsidy program) bear the cost of testing – that is, that individuals will displace the cost of a drug screen by neglecting to buy food or other necessities. 

Richey also contended the drug tests the state of Oklahoma now uses have been found to have 97 percent accuracy, while those private employers use average at 95 percent accuracy; she said the current screening program (which can lead to testing but that is not mandatory) should be retained. 

State Sen. Connie Johnson of Oklahoma City, a Democrat, was interested in the likely cost of litigation to oppose the measure, and the implications of both false positives and false negatives in drug testing. In dialogue with Johnson, Richey noted that in some instances government reimburse welfare recipients for the cost of a test if the findings are negative for drug use. 

Richey reiterated that some individuals – poor mothers, for example — will not be able to afford to pay for drug testing themselves, or will displace other purchases to pay for a test and secure the TANF benefit. 

Richey distributed her group’s Issue Brief making a case against the bill, listing five main reasons “to think twice” about such proposals. 

First, the brief contends, “Oklahoma already screens TANF applicants for substance abuse,” including alcohol. Second, pointing to a 2003 ruling in the Sixth U.S. Circuit Court of Appeals (Marchwinski v. Howard), “Mandatory drug testing of welfare applicants is unconstitutional.”

Third, the group’s analysis asserts “Children will bear the brunt” of drug testing implementation. In support of this point, the brief noted, “Around 17,000 children receive food, clothing, shelter, and basic household necessities” through Oklahoma’s TANF program.

Fourth, such a law “will cost more than it saves.” Oklahoma Policy believes, “the state will be on the hook … from a legal challenge it will likely lose.” In support of one of Richey’s earlier points, the brief on this issue asserts, “denying impoverished parents access to assistance just shifts costs to other state programs, as those parents will be less able to adequately care for their children on their own.” Fifth, the brief concludes, “drug addition is a disease” – and should be treated as such. “Treatment, not sanction” should be the policy response. Opponents of mandatory drug testing of welfare recipients include the American Public Health Association and the National Association of Social Workers. 

Ryan Kiesel of the American Civil Liberties Union (ACLU) of Oklahoma attended the hearing. Although he did not testify, he provided CapitolBeatOK with a two-page white paper arguing against H.B. 2388 on legal grounds – pointing to the Michigan case – and highlighting fiscal analysis that, he concludes, indicate the proposed law would not be cost-effective. 

Kiesel, a former state representative, said in his white paper that such laws in Florida and Indiana did not discover high rates of drug abuse in the populations of welfare recipients. He also asserted the proposal is vague, and that mandatory drug testing intrudes upon rights of privacy. 

Jonathan Small of the Oklahoma Council of Public Affairs (OCPA), a leading organization advocating free-markets and limited government, favored the legislation as he spoke, among other things, about his experiences working in Oklahoma City. He also offered a personal narrative touching upon friends and family he believes had abused TANF or other welfare programs that have few or no incentives toward good behavior in return for benefits. 

In an interview with CapitolBeatOK Tuesday evening, Small elaborated his views, saying, “It is only responsible that temporary assistance programs have some minimum guidelines that make sure government programs are actually a hand up and not an aid to a person continuing unwise or risky behaviors that contribute to an individual’s need for assistance.

“Drug testing for receipt of specific targeted benefits is no different than income requirements for TANF or Medicaid, or wage or new job requirements for business incentives like the Quality Jobs Act or the Home Office Credit. All such requirements are for the purpose of making sure targeted government programs are successful.

“In my time working with children or individuals from poor households over the last 15 years, many times it is the availability of a government program – which does not strongly encourage or incentivize productive change in behavior — that results in the program doing more harm than good.”

He contended, “This reform is a common sense way to help individuals start taking responsibility for their actions and adopt behaviors that make the individual and their dependents more responsible and more likely to succeed, thus making sure the program is truly temporary.

“Passing drug tests is a common requirement of employers and thus preparation for maintaining a job. A policy reform such as this also allows for positive individuals who can provide accountability to be involved (in the case a parent were to fail the drug test) and provide a better environment for any children depending on the program.

“One of the most dangerous things for children is for their immediate parent or guardian to have a drug or addiction problem, apply for benefits, and then be able to ignore the other positive influences and shelters in their life because a government program exists and lets them get by or even abuse benefit programs by supplanting the benefits and diverting cash to destructive behaviors.

“Federal law clearly allows for sanctioning welfare recipients who test positive for use of controlled substances, and isolated hurdles placed by an activist appeals court — or a single judge whose recent stay is disagreed with by scholars and has already been appealed — should not deter lawmakers.

“This reform is just and considerate of children — and it is a reform that is needed.”

At Monday’s committee hearing, questions and debate on the measure were brief, but opposition points likely foreshadowed issues that will be raised in eventual floor consideration. 

Senator Jim Wilson of Tahlequah said the measure would “beat up on poor women” and, further, there was no evidence such a law is needed.

Sen. Johnson thanked both presenters, saying legislators “need the benefit of valid information.” 

Johnson expressed concern that the legislation might scare off potential recipients, including poor mothers unable to afford to pay for the drug test themselves. She said she wondered why the provision applying drug tests to candidates for office had been removed, asking why there is a “focus only on this sub-set” of the population, i.e. welfare beneficiaries. 

Calling addiction “a very dastardly disease,” she echoed Richey’s contention that the focus should be on addiction. Johnson also said mental health issues come into play, and that a non-punitive approach would be preferred. 

Senator Brinkley repeated his support for the measure in brief comments during the panel’s deliberation. 

The measure cleared the panel in a vote of 5-3. Supporting it were the chairman, Brian Crain of Tulsa, and members Steve Russell of Oklahoma City, Rob Johnson of Kingfisher, Dan Newberry of Tulsa and the presenter, Owasso’s Brinkley.

Voting against the proposal were three Democrats, Sens. Johnson and Wilson, and Sean Burrage of Claremore, the panel’s vice chairman. 

House Bill 2388 now moves to the full Senate.
H. B. 2388 was carried in the lower chamber by state Rep. Guy Liebman, an Oklahoma City Republican. The measure passed 82-6 on March 12.

In the lower chamber, opposition came from five Democrats (Rebecca Hamilton of Oklahoma City, Jeannie McDaniel of Tulsa, Richard Morrissette of Okalhoma City, Anastasia Pittman of Oklahoma City and Emily Virgin of Norman) and one Republican, Charles Key of Oklahoma City 

Not voting on the bill were 11 members, including Republicans Mike Christian of Oklahoma City, Ron Peters of Tulsa, Sue Tibbs of Tulsa, and John Trebilcock of Broken Arrow, and Democrats Wes Hilliard of Sulphur, Steve Kouplen of Beggs, Seneca Scott of Tulsa, Mike Shelton of Oklahoma City, Jabar Shumate of Tulsa and Cory Williams of Stillwater. 

All of the remaining members of the House supported the measure.