The following article was prepared by Representative Dean Arp to address some common questions regarding House Bill 392 (“Warrant Status/Drug Screening for Public Assistance”). Representative Arp was the primary sponsor of HB392.
House Bill 392 was first passed by the General Assembly on July 25 but was later vetoed by Governor McCrory (click here to read the “Governor’s Objections and Veto Message” of August 15). The House of Representatives overrode the Governor’s veto on September 3 with the Senate following suit the next day. House Bill 392 is now state law.
What does Part I of HB392 do?
Federal law prohibits fleeing felons or individuals with active arrest warrants for probation or parole violations from receiving certain benefits. This bill gives the Department of Health and Human Services (DHHS) the authority to take the steps necessary for compliance. Specifically, the warrant status provisions of House Bill 392 would require a county department of social services (DSS) to verify whether an applicant for, or recipient of, Temporary Assistance to Needy Family (TANF) or Food and Nutrition Services (FNS) benefits1 is a fleeing felon or a probation or parole violator. The act would further deny TANF or FNS benefits to an applicant or recipient subject to an outstanding arrest warrant for a felony or for a probation or parole violation, but would not affect the eligibility of a member of the individual’s household for those benefits.
What are the requirements of federal law relating to eligibility for TANF and Food and Nutrition Services (Food Stamps) benefits?
Federal law prohibits states from providing TANF or FNS benefits to fleeing felons or to probation or parole violators.2 3 A Proposed Rule of the U.S. Department of Agriculture, which administers SNAP, proposes to define the terms “fleeing” and “actively seeking” and to establish procedures to be used by State agencies in determining fleeing felon or absconder status.4 The rule is not final.
Does Part I of HB392 apply to other types of public assistance programs?
No. The provisions of the bill are limited to TANF and FNS benefits.5 Other programs, such as unemployment and Medicaid, are not included.
What kinds of probation or parole violations are included?
Federal law does not distinguish between felony or misdemeanor probation or parole violations, and applies to absconders under federal or state law.
What kind of background checks are required?
The bill requires DSS to conduct a criminal history check utilizing currently accessible databases, to the extent allowed by allocated county and State resources. House Bill 392 would require various agencies to cooperate and to develop protocols for information sharing,6 and for the Social Services Commission to adopt rules for implementation, including information sharing between DSS and law enforcement agencies.
Does HB392 require a fingerprint background check for all applicants/recipients?
No.7 A fingerprint check is required only for a national warrant search. Fingerprints are not needed to conduct a statewide name-based search. The bill allows the State DHHS to establish rules and circumstances relating to if, when and how a fingerprint background check would be conducted, such as when there is reason to suspect an individual has an outstanding warrant in another state.
What are the costs of the various kinds of background checks?
The Department of Justice has advised there is no additional charge for a background check through the criminal mobile data network, for which a monthly fee is already being paid. If the Department of Health and Human Services/DSS partners with a sheriff’s office at a local level, a criminal background check can be obtained at no additional cost. County DSS agencies already have access to statewide criminal history information through the North Carolina Court System’s Automated Criminal Infractions System (ACIS).8 If a county opts to request background checks through the Department of Justice (SBI), additional costs would be as follows:
- Background check, name only: $10
- Background check, fingerprint, state only: $14
- Background check, fingerprint, state and federal: $38
The FBI will conduct a State and national check through its National Crime Information Center (NCIC) only if there is a “criminal justice purpose” for the request.9
How would provisions of HB392 affect members of the applicant/recipient’s household?
Members of the applicant/recipient’s household would not be affected under HB392. Federal Regulations address the eligibility and benefits of remaining household members.10
What are the confidentiality requirements relating to information sharing?
Each DSS would be required to work with law enforcement, but only to the extent already allowed by federal law.
Federal Law: The TANF statute requires a state to provide certain information with law enforcement agencies if a law enforcement officer provides specified information.11 Nothing in the statute prohibits a state from electing to exchange information in additional cases if the state’s TANF plan addresses how the state will “take such reasonable steps as the state deems necessary to restrict the use and disclosure of information about individuals and families receiving assistance under” the federal program.12 States must establish safeguards relating to the use or disclosure of information.13
Federal Regulations: Federal regulations further provide that a state or local agency administering specified state plans for financial assistance under Title IV-A of the Social Security Act (TANF) may use or disclose information concerning applicants and recipients for purposes directly connected with establishing eligibility under the plan or program.14
What does Part II of HB392 require?
Part II of HB392 applies to the Work First Program, North Carolina’s Temporary Assistance for Needy Families Program. HB392 requires that some individuals who apply for, or receive, Work First Program Assistance, North Carolina’s Temporary Assistance for Needy Families Program take and pass a drug test prior to receiving benefits. This drug testing requirement applies only to applicants or recipients whom DHHS suspects are engaged in the illegal use of controlled substances. The bill does not apply to child-only cases in which no adult is included in the benefit calculation.
What is current policy?
Currently, all adult applicants for Work First assistance are screened for potential substance abuse. Upon application, the caseworker uses screening questionnaires to assess whether the adult is at risk for substance abuse. If the adult refuses to complete the screening, the case is denied. If the screening indicates the adult is at risk for substance abuse, the individual is referred to a Qualified Professional in Substance Abuse (QPSA) who makes a determination regarding whether the individual is in need of a substance abuse treatment program.
If it is determined the individual is in need of treatment, satisfactory participation in the treatment program is mandatory to receive benefits. This treatment program consists of mandatory random drug testing as part of the individual’s follow-up or continuing care services. If the individual fails to comply, the individual will not be eligible for benefits and any current benefits will be terminated from the case. The children continue to be eligible and a protective payee is assigned to the case. This procedure is consistent with the current North Carolina General Statute 108A-29.1.
Does HB392 require mandatory drug testing for all applicants/recipients?
No. Only adult applicants or recipients whom the DHHS reasonably suspects are engaged in the illegal use of controlled substances will be required to undergo drug testing.
Who pays for the drug testing?
The cost of the initial drug test is borne by the State. If an individual fails the test and wishes to have a retest, the individual may take one or more additional tests at their own expense.
The bill is funded in the State Budget (Senate Bill 402, Page 4, Line 9), under the “Reserve for Pending Legislation” line item and is further explained in the Joint Conference Committee Report on page 143, Item #17: “Reserve for Pending Legislation: HB 392 – Department of Health and Human Services to implement the bill.”
How is “reasonable suspicion” defined and determined?
The definition of “reasonable suspicion” can be found in subsection (g) of G.S. 108A-29.1 found in Section 4 of HB392. Under the bill, the following constitutes “reasonable suspicion”:
- A criminal records check that discloses a conviction, arrest, or outstanding warrant relating to illegal controlled substances with the three years prior to the date the criminal record check is conducted.
- A determination by a qualified professional in substance abuse or a physician that the individual is addicted to illegal controlled substances.
- A screening tool relating to the abuse of illegal controlled substances that yields a result indicating that the individual may be engaged in the illegal use of controlled substances.
- Other screening methods, as determined by the Social Services Commission.
What happens if an applicant/recipient fails a drug test?
If an adult applicant or recipient fails a drug test, the children are not affected. The children continue to be eligible and a protective payee is assigned to the case. If an individual fails a drug test, there are several options:
- Accept the drug test result and wait the specified time period before reapplying.
- Take one or more additional tests if the individual believes the result is in error. The costs of the retest are borne by the individual.
- Successfully participate in or complete a qualifying substance abuse treatment program. The individual choosing this option may re-apply for benefits after 30 days. The individual must document successful completion of or participation in the program and pass a subsequent drug test, the cost of which is born by the individual.
- Obtain documentation from a qualified professional in substance abuse or a physician certified by the American Society of Addiction Medicine that a substance abuse program is not appropriate. An individual choosing this option may re-apply for benefits after 30 days. The individual must provide the documentation as well as pass a subsequent drug test, the cost of which is born by the individual.
Individuals who enroll in a substance abuse treatment program or who obtain documentation that a substance abuse program is not appropriate for the individual may reapply after 30 days only once.
Who pays for substance abuse treatment?
The cost of the substance abuse treatment is the responsibility of the individual enrolling in the substance abuse treatment program. If the individual is eligible for Medicaid, Medicaid may cover the costs of substance abuse treatment for the individual.
What is the bill’s implementation timeline?
HB392 becomes effective October 1, 2013, except for Part II applying to drug testing for the Work First program. The new drug testing requirements for applicants or recipients whom DHHS suspects are engaged in the illegal use of controlled substances become effective August 1, 2014. The Social Services Commission is directed to adopt rules implementing the new requirements. Those rules must be adopted no later than February 1, 2014.
What are state agencies required to do?
The Social Services Commission is directed to adopt rules implementing the new requirements. Rules pertaining to drug testing must be adopted no later than February 1, 2014. The DHHS must report back to the General Assembly no later than April 1, 2014, regarding implementation.
Is there case law on drug testing for public assistance?
Both Michigan and Florida have enacted state laws that established mandatory drug testing programs as a condition of receiving Temporary Assistance for Needy Families for all individuals, and those laws have been challenged in the courts on Fourth Amendment grounds.15 16 Both Michigan and Florida laws required drug testing of all applicants without suspicion.
In the Michigan case, the court stated that “suspicionless drug testing is unconstitutional if there is no showing of a special need, and that the special need must be grounded in public safety.”17 The Michigan program was later modified to drug test only individuals for whom there was reasonable suspicion to believe the individuals are using illegal controlled substances, rather than all applicants.
The Florida case is still pending litigation, however a temporary injunction has been issued indicating that there was a likelihood of success on the merits of the case that the drug testing without suspicion is a violation of the Fourth Amendment.
The four “reasonable suspicion” provisions in House Bill 392 were included to address the court’s concerns in both the Florida and Michigan cases.
1 The FNS benefits are provided under the Supplemental Nutrition Assistance Program (SNAP), commonly called “food stamps.” 7 U.S.C. Chapter 51
2 42 U.S.C. 608(a)(9)(A). (TANF)
3 Section 6(k) of the Food and Nutrition Act of 2008, 7 U.S.C. 2015(k). (SNAP)
4 7 C.F.R. 273.11
5 Proposed G.S. 108A-26.1(a)
6 North Carolina’s Criminal Justice Computer Systems and their relationship with other state criminal justice computer systems
7 Proposed G.S. 108A-26.1(b)(2)
8 The North Carolina Court System: Courtflow
9 See, e.g., National Criminal History Record Information Audit Guide For Noncriminal Justice Agency Audits
10 7 CFR 273.11(c)
11 42 U.S.C. 608(a)(9)(B)
12 42 U.S.C. 602(a)(1)(A)(iv)
13 42 U.S.C. 608(a)(9)(B)
14 45 C.F. R. 205.50(a)(1)(i)(A)(“Safeguarding information for the financial assistance programs”)
15 Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000)
16 Lebron v. Wilkins, 820 F. Supp. 2d 1273, 1278 (M.D. Fla. 2011) aff’d sub nom. Lebron v. Sec’y, Florida Dep’t of Children & Families, 710 F.3d 1202 (11th Cir. 2013)
17 Marchwinski v. Howard, 113 F. Supp. 2d 1134, 1143 (E.D. Mich. 2000)