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Welfare drug test foes: Bill is likely unconstitutional

New Hampshire Union Leader

January 22. 2013 10:10PM

Civil libertarians, lawyers for the Welfare Department and the Attorney General's Office lined up Tuesday against a proposal for mandatory drug testing of some applicants for welfare benefits.

House Bill 121, filed by state Rep. Donald LeBrun would require a drug test for new applicants for TANF. An applicant failing the test would be disqualified from the benefit for a year, but could be restored after six months provided treatment yielded a clean drug test.

LeBrun, R-Nashua, said the state is playing the role of a drug dealer when it gives money to people who need the cash to pay for their addictions.

"Sometimes the truth can be harsh," Lebrun said. "We hope no one will notice but we have swept this problem under the rug long enough; now is the time to rectify it."

Deputy Attorney General Ann Rice opposed the measure at Tuesday's public hearing, arguing that it would likely be subject to constitutional challenges.

Rice said the Attorney General's Office would likely find itself defending the measure against suits claiming violation of constitutional protections against warrantless searches. She told the committee that government drug tests pass muster only in cases of "individualized suspicion" of criminal activity, cases of railway employees involved in a crash or people applying for high-level jobs involving drug interdiction.

"If you choose to go down this road, you will be choosing lots of litigation," said Rice, who also warned that the lack of appeal provisions in the bill could mean the state faces suits claiming violation of applicants' rights to due process guaranteed by the Constitution.

Another attorney, Sarah Mattson of New Hampshire Legal Assistance, called the proposal a "very high-cost, very low-return idea." Mattson said the testing would cost more than the savings that result from people testing positive.

A fiscal note from the Department of Health and Human Services said it would cost as much as $239,000 to reimburse testing costs for clients who test negative, while savings would be about $50,000 to $219,000 from denials - based on estimates of a failure rate of 2.6 percent to 8.8 percent as experienced in other states.

"There is very little evidence that drug use is prevalent among TANF recipients," Mattson said. "There is a persistent and vicious myth that people who are receiving welfare are engaging in drug use at higher percentages than people in the general population and that is simply not borne out."

Laws requiring TANF drug screening in Florida and Michican have been challenged successfully at the trial court level by the American Civil Liberties Union. However, an appeal in Florida is still pending, and an appeal in Michigan resulted in a tie vote in a case before the full bench of the Sixth Circuit Court of Appeals.

Devon Chafee, executive director of the New Hampshire ACLU, warned the committee that it may plunge the state into a situation where it will "waste taxpayers dollars" defending itself in similar cases if the bill is enacted.

Chafee warned that the bill as written raises other civil liberties issues.

"The drug-testing scheme may reveal highly personal health information, such as certain health conditions, pregnancy and genetic predisposition (to disease)," she said. "It leaves protections to (DHHS) rule-making; therefore the protections are unclear."

The bill was also opposed by Matt Simon of Goffstown, a legislative analyst for the Marijuana Policy Project, who warned that because marijuana can be detected weeks after use, people may instead use liquor or other more harmful drugs that disappear from the system within a couple of days.

One witness other than LeBrun spoke in favor of the bill at the hearing Tuesday.

Dee Shorter, who said she used to work as a caseworker in the Concord welfare office, said after almost 10 years on the front lines seeing what TANF families do with the finances, she is "very much for the bill."

Shorter warned the committee, though, that recipients disqualified from some welfare programs sometimes turn around and find a way to qualify for disability benefits.

"They will find a loophole; that's what they do," she said.

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