AUGUSTA — Opponents of a proposed rule that would require drug tests for convicted drug felons seeking cash assistance from the state argued Monday that the rule is unfair and could exacerbate a family’s efforts to right itself.
No one spoke in favor of the proposed rule during a brief public hearing Monday afternoon at the Department of Health and Human Services headquarters in Augusta, but Health and Human Services Commissioner Mary Mayhew told the BDN that the rule was a “common-sense approach” to guarding public dollars for use by the state’s most vulnerable people and encouraging drug abusers to seek treatment so they can get back to work.
However, representatives of several groups, including the American Civil Liberties Union of Maine and Maine Equal Justice Partners, argued to the contrary.
“The data just doesn’t support the notion that people who rely on public assistance are more likely to use or abuse drugs than the mainstream population,” said Robyn Merrill, a Maine Equal Justice Partners policy analyst. “Because someone has a conviction from 14 or 15 years ago, that doesn’t create a reasonable suspicion that they’re currently using drugs.”
The rule in question, which follows up on a state law enacted in 2011 as part of a $6.1 billion biennial budget bill, would require people with past felony drug-related convictions to submit to drug tests as a condition of applying for or receiving cash benefits from the Temporary Assistance for Needy Families program. Those who test positive for illegal drugs would be required to undergo a drug treatment program at their own expense in order to continue receiving the benefit.
TANF is a temporary cash assistance program designed to provide families, which are often led by a single parent, and children with money for basic necessities such as housing, transportation and child care. The maximum benefit for a parent and two children is $485 per month.
Gov. Paul LePage announced earlier this month that his administration would move forward with the drug-testing proposal. That announcement triggered attacks from his opponents about why he is moving to implement the law three years later and so close to Election Day.
Mayhew said she hopes the drug-testing program will be in place in early October. Monday’s hearing was one of the final steps in implementing the rule.
A written public comment period is open through Sept. 7, after which Attorney General Janet Mills, a Democrat, will need to sign off on whether the final rule complies with federal law and the intent of the original state-level legislation.
Mills said Monday that her office is usually asked to preview rules such as this one “to look for obvious flaws” before they reach the public comment stage, but that didn’t happen in this case.
“I don’t want to prejudge the end result or address any legal issues until such a time as it comes to us for that review,” said Mills. “Our role in this is relatively limited.”
Pat Kimball, president of the Maine Association of Substance Abuse Programs, said the state should be careful about making it harder for people convicted of past drug crimes to receive funding for necessities.
“If families don’t have their basic needs met, their chances for recovery are very slim,” said Kimball. “Food is a basic need, and studies have shown that families who are hungry and homeless have a hard time recovering.”
Oamshri Amarasingham, public policy council for the ACLU of Maine, said the proposed rule is unconstitutional.
“In addition to violating the Constitution, the proposed rule represents unsound fiscal policy, leaves many crucial questions unanswered and gives credence to harmful and false stereotypes,” she said. “The Supreme Court of the United States has long held that a drug test is a search protected by the Fourth Amendment to the U.S. Constitution. With limited exception, the government cannot require a drug test without first securing a warrant based on probable cause.”
Amarasingham argued that similar laws in Florida and Michigan were challenged by the ACLU and repealed as a result.
“Maine will likely fail as well,” she said, adding that the ACLU of Maine will wait until the final rule is published to decide whether legal action is appropriate. “It’s our position that being subjected to a drug test when there’s no suspicion of probable cause is an invasion of privacy. Many people wouldn’t want to be subjected to that.”
Mayhew said the cost of the drug tests would be covered by a DHHS administrative account and administered by the department.
“The TANF program is an employment-focused program,” said Mayhew. “It is critical for individuals to be drug free in order to stay employed and be able to support themselves and their families. We want to help people who are in recovery and certainly if someone is in a drug treatment program, they will be able to maintain access to this program.”
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