January 29, 2020
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With AG’s approval, LePage administration to start drug testing some welfare applicants

Scott Thistle | Sun Journal
Scott Thistle | Sun Journal
Maine Department of Health and Human Services Commissioner Mary Mayhew

AUGUSTA, Maine — After changes were made to protect the state from potential lawsuits, Gov. Paul LePage’s administration is moving forward with a plan to drug test some welfare applicants as a condition of eligibility.

The new rule, approved recently by Attorney General Janet Mills, requires applicants convicted of a drug felony in the past 20 years to take a written test designed to determine their risk for further drug use. If the applicant is determined to be at risk, he or she would be required to take a drug test.

If the applicant tests positive, or refuses to take the test, he or she will be allowed to participate in a drug treatment program and continue receiving benefits. If the applicant refuses, benefits will be denied. Positive tests would also be exempt from the rule when justified for medical reasons, such as prescribed opiates.

The new rule applies only to applicants for Temporary Assistance for Needy Families, or TANF, a federally funded cash assistance program.

Health and Human Services Commissioner Mary Mayhew said Wednesday that the rule will “bring another layer of accountability to our welfare system.”

“The LePage administration is respecting the wishes of hardworking taxpayers who want to know that the hand up they provide is being used appropriately,” Mayhew said in a written statement. “The goal of these benefits is not to subsidize poor lifestyle choices, but to help Mainers transition from a life of poverty to a life of prosperity.”

The rule also allows DHHS to test current TANF recipients who are known convicted drug felons. Current recipients whose benefits expire will be subject to the new rule when the benefit is recertified.

Maine’s Legislature enacted the drug-testing rule in 2011 with broad, bipartisan support. The administration, however, did not pursue its implementation until last year. Since then the attorney general’s office and DHHS have been hammering out the fine details to protect the state against potential lawsuits.

Other states have seen their drug-testing rules challenged on constitutional grounds. For that reason, Assistant Attorney General Thomas Quinn made several recommendations designed to protect the state from such a challenge. The U.S. Supreme Court has ruled such drug tests constitutional only if they are applied as a result of individualized suspicion.

The inclusion of the preliminary risk screening — using a scientifically proven method called the Substance Abuse Subtle Screening Inventory — in addition to the prior felony conviction is designed to articulate such individualized suspicion. Its adoption represents a “substantial gain in constitutional armor,” Quinn wrote in a Dec. 17 memo.

David Sorensen, a spokesman for DHHS, said the testing would begin “as soon as possible.”

“We have to line up a vendor” to conduct the testing, he said. “It’s just a matter of actually implementing the policy now.” Sorensen said each drug test is expected to cost about $62.

The American Civil Liberties Union of Maine opposes the rule’s implementation, even with the recommended changes from the attorney general.

“It’s disappointing that the governor is focused on ways to make it harder for Maine families to get by, rather than ways to help them,” the group said in a written statement. “Treating poor people like suspected criminals not only goes against Maine values, it raises constitutional concerns. We’ll be keeping a close eye on how this policy is implemented.”

The state’s TANF caseload has decreased by about half since LePage took office in 2011. Roughly 17,000 Mainers are currently enrolled in the program, according to Sorensen.

Follow Mario Moretto on Twitter at @riocarmine.


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