On 7 January 2011, HB208 was introduced to the Kentucky state legislature’s House of Representatives. That bill sought to modify existing state rules to require that adults who receive public assistance participate in (and pass) a substance abuse screening program once a year:
(10) (a) The cabinet shall design and implement a substance abuse screening program for adult persons receiving or seeking to receive monetary public assistance, food stamps under the federal food stamp program, or assistance under the state medical assistance program, with the screening program including periodic testing of the person’s blood or urine for the presence of controlled substances as set out in this section.
(b) An adult person shall be ineligible for public assistance if:
1. The person does not participate in the substance abuse screening program established under this section; or
2. The person tests positive in a substance abuse test administered by the program for the presence of:
a. A schedule I controlled substance; or
b. A schedule II – V controlled substance not prescribed for that person.
(c) The substance abuse testing component of the screening program shall be designed so as to require that testing occurs as an initial condition precedent prior to the receipt of public assistance and once for each subsequent year the adult person receives public assistance, with the person being randomly assigned a month within that year to submit to testing upon receipt of reasonable notice from the cabinet.
(d) The results of testing conducted under this subsection shall not be admissible in any criminal proceeding without the consent of the person tested.
However, contrary to what was stated in the Facebook-circulated example cited above, it is false to say that Kentucky “passed” such a law. The bill was merely a proposal which was introduced to one house of the state legislature and was not brought to a vote.
According to the [Louisville] Courier-Journal:
The [bill’s] sponsor, Lancaster Republican Lonnie Napier, said in an interview that he plans to amend the bill to allow those who fail the drug tests to continue receiving assistance if they agree to undergo state-paid substance abuse treatment.
If they refuse treatment, they would lose the assistance, he said.
Napier said the goal “is to get people off drugs.”
“I’m not a hard-hearted guy,” he said. “I believe there is a need for public assistance for those who need it, but I understand some are using these funds to buy drugs.”
In July 2011, the state of Florida enacted a law requiring adults applying for welfare assistance to undergo drug screening:
Saying it is “unfair for Florida taxpayers to subsidize drug addiction,” Gov. Rick Scott signed legislation requiring adults applying for welfare assistance to undergo drug screening.
“It’s the right thing for taxpayers,” Scott said after signing the measure. “It’s the right thing for citizens of this state that need public assistance. We don’t want to waste tax dollars. And also, we want to give people an incentive to not use drugs.”
Under the law, which takes effect on July 1, the Florida Department of Children and Family Services will be required to conduct the drug tests on adults applying to the federal Temporary Assistance for Needy Families program. The aid recipients would be responsible for the cost of the screening, which they would recoup in their assistance if they qualify. Those who fail the required drug testing may designate another individual to receive the benefits on behalf of their children.
Enforcement of the Florida law was temporarily halted in October 2011 through a temporary injunction issued by a federal judge after the American Civil Liberties Union filed suit on behalf of a Florida resident who was denied benefits when he refused to take a drug test, arguing that mandatory drug testing of welfare recipients without probable cause violated the constitutional prohibition against unreasonable searches and seizures:
A federal judge in Orlando temporarily blocked Florida’s controversial law requiring welfare applicants be drug tested in order to receive benefits.
Judge Mary Scriven issued a temporary injunction against the state, writing in a 37-page order that the law could violate the Constitution’s Fourth Amendment ban on illegal search and seizure.
In her order, Scriven issued a scathing assessment of the state’s argument in favor of the drug tests, saying the state failed to prove “special needs” as to why it should conduct such searches without probable cause or reasonable suspicion, as the law requires.
“If invoking an interest in preventing public funds from potentially being used to fund drug use were the only requirement to establish a special need,” Scriven wrote, “the state could impose drug testing as an eligibility requirement for every beneficiary of every government program. Such blanket intrusions cannot be countenanced under the Fourth Amendment.”
In December 2013, a U.S. District Judge upheld that ruling and struck down the Florida drug testing law:
A U.S. judge has struck down a Florida law requiring drug screening for welfare recipients, saying that it violated the constitutional protection against unreasonable searches.
The testing fee of $25 to $45 was to be repaid by the state if the test came back negative, but applicants who tested positive would have been barred from receiving benefits for a year.
U.S. District Judge Mary Scriven permanently halted enforcement of the law in her ruling. She agreed with an earlier court finding that “there is nothing inherent in the condition of being impoverished that supports the conclusion that there is a concrete danger that impoverished individuals are prone to drug use …”
During the time the law was in effect, about 2.6 percent of recipients tested positive for illegal drugs, mostly for marijuana, according to the court documents.
The failure rate was well below that of the general population. The U.S. Department of Health and Human Services found in a 2009 survey that about ,8.7 percent, of the population aged 12 or older had used illicit drugs in the previous month.
Generally, the courts have allowed suspicionless drug testing only when public safety is at risk, such as for armed officers or railroad workers who operate heavy equipment.
In July 2011, Missouri governor Jay Nixon signed off on a similar drug screening bill in that state:
Missouri Gov. Jay Nixon has signed legislation requiring drug screens for some individuals receiving or applying for certain welfare benefits.
Officials will administer drug tests when they have reasonable cause to believe an applicant or recipient is using illegal drugs.
Under the bill, welfare recipients would lose their benefits for three years if they fail a urine test that screens for narcotics. But the measure would allow them to receive benefits if they complete a drug treatment program and do not test positive again.
In 1999 the state of Michigan implemented a program requiring random drug testing for welfare recipients, but that program was halted after a federal court ruled that it violated Fourth Amendment protections against unreasonable search and seizure.
In May 2012, Oklahoma passed a law requiring welfare applicants to be screened for possible drug use and drug tested upon suspicion they are using. They would be denied benefits if they test positive.