Can Tennessee require drug tests for people applying for welfare or other public assistance benefits?

Subject

Opinion No. 12-41, Limitations on Drug Testing as a Condition of Receiving Public Assistance, March 20, 2012

Plain-English summary

In 2012, three different Tennessee bills proposed drug testing for public assistance applicants. SB 652 / HB 957 would have required drug testing or consent to testing for "each adult recipient who is otherwise eligible for public assistance," to the extent not prohibited by federal law. SB 2272 / HB 3090 specifically targeted Temporary Assistance for Needy Families (TANF), requiring "suspicion-based" urine drug screening and disqualifying any applicant who tested positive for a year. SB 2580 / HB 2725 was similar to SB 2272 but added the "to the extent not prohibited by federal law" qualifier.

Senator Joe M. Haynes asked the AG what limits federal and state law placed on these proposals. The AG answered in two parts.

First, federal law on benefit conditions. Title XIX of the Social Security Act, the TennCare federal waiver, and the federal Food Stamp program all establish their own eligibility standards. The AG had previously concluded in Op. Tenn. Att'y Gen. 07-84 (June 1, 2007) that states cannot add eligibility conditions to these federal programs unless authorized. Title XIX requires medical assistance for "all individuals" meeting income and other federal standards. 42 U.S.C. § 1396(a)(10)(A)(i). The food stamp law prohibits states from imposing "any other standards of eligibility." 7 U.S.C. § 2014(b). So conditioning Title XIX, TennCare, or food stamp eligibility on drug testing would conflict with the federal eligibility rules and run afoul of the Supremacy Clause. Since most TDHS public assistance flows through these federal programs, much of SB 652 would have been preempted out of effect.

Second, for TANF (where 21 U.S.C. § 862b expressly permits state drug testing), the Fourth Amendment imposes its own limit. Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000), aff'd en banc by an evenly divided Sixth Circuit, held that suspicionless drug testing of TANF applicants is an unreasonable search and seizure. LeBron v. Wilkins, 2011 WL 5040993 (M.D. Fla. Oct. 24, 2011), followed the same approach, holding that even if a TANF applicant consents to a drug test as a condition of applying, that does not make the testing constitutional. Bills requiring blanket suspicionless testing of all TANF applicants were therefore constitutionally vulnerable.

The opinion's bottom line: only programs that aren't federally controlled, and only testing structures with individualized suspicion, could avoid both preemption and Fourth Amendment problems.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The law of suspicionless drug testing for public benefits has continued to evolve, and several subsequent appellate decisions have reinforced the Fourth Amendment limits. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical background and statutory framework

The three bills

SB 652 / HB 957: would have added Tenn. Code Ann. § 71-5-2315 requiring TDHS to "implement a program of substance abuse testing for each adult recipient who is otherwise eligible for public assistance or who the department has reasonable cause to believe engages in the illegal use of controlled substances," with the qualifier that this applied only to the extent not prohibited by federal law. Refusing to consent to testing was a ground for denial.

SB 2272 / HB 3090: would have added Tenn. Code Ann. § 71-3-167(a)(1), requiring TDHS to require "a suspicion-based urine drug test program consistent with title 50, chapter 9" for each TANF applicant or recipient. Cost was on the applicant. Disqualified anyone who tested positive for one year.

SB 2580 / HB 2725: similar to SB 2272 but with a "to the extent not prohibited by federal law" qualifier.

Federal preemption analysis

The federal benefit programs in question:

• Title XIX (Medicaid): 42 U.S.C. § 1396(a)(10)(A)(i) requires a state plan to provide medical assistance to "all individuals" meeting specified income and other federal standards. Section 1396a(a)(10)(B) requires medical assistance to not "be less in amount, duration, or scope than the medical assistance made available to any such other individual." No drug-testing condition is authorized.

• TennCare waiver: nothing in the federal waiver authorizes drug-testing conditions on eligibility.

• Food Stamps (SNAP): 7 U.S.C. § 2014(b) directs the Secretary to "establish uniform national standards of eligibility" and prohibits state agencies from imposing "any other standards of eligibility." That's broad and unambiguous preemption of state-added eligibility conditions.

The AG built the preemption argument on a line of Supreme Court cases:

• Carleson v. Remillard, 406 U.S. 598, 603-04 (1972) (California regulation excluding "military absence" from "continued absence" definition for AFDC invalid under Supremacy Clause)
• Townsend v. Swank, 404 U.S. 282, 286 (1971) (Illinois exclusion of 18-20 year-old college-attending children invalid)
• King v. Smith, 392 U.S. 309, 320 (1968) (Alabama statute that flatly denied AFDC to otherwise eligible dependent children conflicted with Social Security Act)

The Fifth Circuit in Planned Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324, 336-37 (5th Cir. 2005), summarized the rule: "State participation in federal funding programs is voluntary, but once a state has accepted federal funds, it is bound by the strings that accompany them."

Result: SB 652, even with its "to the extent not prohibited by federal law" qualifier, would not function meaningfully for Title XIX programs (the bulk of TDHS public assistance), because federal law prohibited adding such conditions.

Fourth Amendment analysis for TANF

TANF was different. 21 U.S.C. § 862b expressly permits states to drug-test welfare recipients. So federal law was not the barrier. But the Fourth Amendment was.

Marchwinski v. Howard, 113 F. Supp. 2d 1134, 1142 (E.D. Mich. 2000), held that Michigan's program of suspicionless drug testing of TANF applicants violated the Fourth Amendment. The Sixth Circuit, on rehearing en banc, affirmed by an evenly divided 6-6 vote. 60 Fed. Appx. 601 (6th Cir. 2003). The result: the district court's invalidation stood, and Michigan's suspicionless testing was unconstitutional within the Sixth Circuit's jurisdiction (which includes Tennessee).

LeBron v. Wilkins, 2011 WL 5040993 (M.D. Fla. Oct. 24, 2011), addressed Florida's similar program and held it constitutionally suspect even though the applicants had to consent to the drug test as a condition of applying. The court rejected the idea that consenting to receive a benefit was meaningful consent to a search.

SB 2272 used the word "suspicion-based" but its actual structure required drug screening of every applicant first, then a urine test for any flagged through screening. The screen functioned as a universal first step. The AG found this constitutionally suspect because it functionally screened all applicants.

SB 2580 had the federal-law qualifier. Under the AG's analysis, federal law in this context meant the Fourth Amendment via the Sixth Circuit. So SB 2580's reach was "severely constrained" by that constitutional limit.

What the AG didn't say

The opinion did not say drug testing for public assistance was always impermissible. The implication: a state-funded benefit program not bound by federal eligibility rules, with testing tied to individualized suspicion of drug use (not a blanket requirement), could potentially be defensible. But neither of those conditions was met by the bills as drafted.

Common questions

Could Tennessee require everyone who applies for any state benefit to take a drug test?

According to this opinion, no, not as a blanket rule. Federal law preempts adding such conditions to federally funded programs (Medicaid, TennCare, food stamps). And the Fourth Amendment, under the Sixth Circuit's Marchwinski decision, prohibits suspicionless testing of TANF applicants.

What if Tennessee created its own state-funded benefit program?

The opinion does not address that scenario directly. Federal preemption would not apply to a purely state-funded program. But the Fourth Amendment would. The Sixth Circuit's reasoning in Marchwinski about suspicionless searches of public benefit applicants would likely apply.

What does "suspicion-based" mean for drug testing?

The bills SB 2272 used the phrase, but the AG read the structure as universal screening. True "suspicion-based" testing would mean an individualized basis for suspecting drug use, not just routine screening that triggers a test. The constitutional doctrine looks at whether the search is targeted to specific individuals with reason for suspicion, or applied to everyone alike.

Can Tennessee refuse benefits to someone who's been convicted of drug crimes?

Federal law does allow some restrictions tied to convictions. 21 U.S.C. § 862b expressly permits states to do certain things with TANF. But blanket testing is different from conviction-based ineligibility. The opinion did not get into the latter.

What if I'm an applicant and the State demands a drug test?

In 2012, under the AG's reading, applying Marchwinski, you arguably had a Fourth Amendment claim if the test was suspicionless. The state's "consent" by way of conditioning benefits was not constitutionally adequate consent, per LeBron. Anyone facing this scenario should consult a current civil rights attorney; the law has continued to develop.

Did the opinion suggest a workable program?

Implicitly, yes. A program testing only individuals with individualized suspicion, targeting non-federally-controlled benefits, might survive. The opinion did not endorse any specific structure, but the legal limits it identified point to that narrower zone.

Citations

• Tenn. Code Ann. § 71-3-167 (proposed under SB 2272)
• Tenn. Code Ann. § 71-5-2315 (proposed under SB 652)
• Tenn. Code Ann. tit. 50, ch. 9 (drug testing for employment)
• 21 U.S.C. § 862b (state authority to drug-test welfare recipients)
• 42 U.S.C. § 1396(a)(10)(A)(i), 1396a(a)(10)(B) (Title XIX eligibility requirements)
• 7 U.S.C. § 2014(b) (food stamp uniform eligibility standards)
• U.S. Const. amend. IV (Search and Seizure)
• U.S. Const. art. VI (Supremacy Clause)
• Carleson v. Remillard, 406 U.S. 598 (1972)
• Townsend v. Swank, 404 U.S. 282 (1971)
• King v. Smith, 392 U.S. 309 (1968)
• Planned Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324 (5th Cir. 2005)
• Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000), aff'd en banc by an evenly divided court, 60 Fed. Appx. 601 (6th Cir. 2003)
• LeBron v. Wilkins, No. 6:11-cv-01473, 2011 WL 5040993 (M.D. Fla. Oct. 24, 2011)
• Op. Tenn. Att'y Gen. 07-84 (June 1, 2007)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-041.pdf

Original opinion text

Limitations on Drug Testing as a Condition of Receiving Public Assistance

QUESTION

What, if any, federal or Tennessee legal limitations exist on proposed legislation that would require the Tennessee Department of Human Services ("TDHS") to implement a program of substance abuse testing as a condition for public assistance?

OPINION

Title XIX of the Social Security Act, the TennCare waiver, and the federal Food Stamp program do not permit a state to condition eligibility on substance abuse testing or consent to such testing. In addition, even where federal law does permit the drug testing of public assistance applicants, drug testing without some quantum of individualized suspicion constitutes an unconstitutional search and seizure under the Fourth Amendment of the United States Constitution.

ANALYSIS

This opinion request seeks guidance as to any legal limitations on three proposed bills pending before the Tennessee General Assembly, each of which to varying extents require TDHS to implement a program of substance abuse testing as a condition for public assistance eligibility. The three bills in question are Senate Bill 652/House Bill 957, 107th General Assembly, 2nd Sess. (2012) ("SB652"), Senate Bill 2272/House Bill 3090, 107th General Assembly, 2nd Sess. (2012) ("SB2272") and Senate Bill 2580/House Bill 2725, 107th General Assembly, 2nd Sess. (2012) ("SB2580"). Each of these bills is analyzed separately below.

Senate Bill 652

SB652 amends the Tennessee Code to add § 71-5-2315, providing in pertinent part:

(a) To the extent not prohibited by federal law, or by any federal waiver received by the state that waives any or all of the provisions of Title XIX of the Social Security Act as amended (P.L. 89-97) or pursuant to any other federal law as adopted by amendment to the required Title XIX state plan, the department of human services shall implement a program of substance abuse testing for each adult recipient who is otherwise eligible for public assistance or who the department has reasonable cause to believe engages in the illegal use of controlled substances. Prior to receiving public assistance every adult recipient who applies for public assistance shall sign a document that gives consent of such adult recipient to a test or tests for the purpose of determining the drug content in such adult recipient. The failure of an adult recipient to sign a document giving consent to such test or tests shall be ground for denial of public assistance benefits.

SB652, §1. SB652 thus conditions, to the extent not prohibited by federal law or waiver, public assistance eligibility upon the results of a drug test and consent to allow drug testing.

This Office has previously opined that Title XIX of the Social Security Act, the TennCare waiver, and the federal Food Stamp program (hereinafter referred to collectively as "Title XIX benefits") do not permit a state to condition eligibility on substance abuse testing. Op. Tenn. Att'y Gen. 07-84 (June 1, 2007). This Office in so concluding reasoned:

Title XIX of the Social Security Act, the TennCare waiver, and federal Food Stamp eligibility standards do not permit a state to condition eligibility on substance abuse testing. Title XIX of the Social Security Act requires that a state plan for medical assistance provide for making medical assistance available to "all individuals" who meet specified income and other standards, and that the medical assistance made available to these individuals "not be less in amount, duration, or scope than the medical assistance made available to any such other individual." 42 U.S.C. §§ 1396(a)(10)(A)(i); 1396a(a)(10)(B). The statute has no language which would permit a state to require substance abuse testing as a condition of eligibility. Nothing in the TennCare waiver would permit the State to condition eligibility on substance abuse testing. [citation omitted] Federal Food Stamp eligibility standards do not require substance abuse testing and do not permit a state to impose any additional eligibility requirements.

Except as otherwise provided in this chapter, the Secretary shall establish uniform national standards of eligibility (other than the income standards for Alaska, Hawaii, Guam, and the Virgin Islands of the United States established in accordance with subsections (c) and (e) of this section) for participation by households in the food stamp program in accordance with the provisions of this section. No plan of operation submitted by a State agency shall be approved unless the standards of eligibility meet those established by the Secretary, and no State agency shall impose any other standards of eligibility as a condition for participating in the program.

7 U.S.C. § 2014(b).

Id. at 3-4 (footnotes omitted) (emphasis in original).

Nothing has transpired since the issuance of Opinion No. 07-84 to change the Opinion's conclusion. In short, a state cannot impose any conditions on eligibility for these federal benefits other than those allowed by federal law. See also Carleson v. Remillard, 406 U.S. 598, 603-04 (1972) (holding that a California regulation excluding absence because of "military absence" from the definition of "continued absence" of a parent from the home as a condition of eligibility for benefits from the program for aid to families with dependent children was invalid under the Supremacy Clause of the United States Constitution); Townsend v. Swank, 404 U.S. 282, 286 (1971) (held invalid under the Supremacy Clause an Illinois eligibility standard that excluded from AFDC benefits needy dependent children 18 to 20 years of age attending college, finding an absence of any congressional authorization for this exclusion in the Social Security Act or its legislative history); King v. Smith, 392 U.S. 309, 320 (1968) (finding that an Alabama statute conflicted with the Social Security Act "by flatly denying AFDC assistance to otherwise eligible dependent children"). As one court succinctly observed, under the Supremacy Clause, "[s]tate participation in federal funding programs is voluntary, but once a state has accepted federal funds, it is bound by the strings that accompany them." Planned Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324, 336-37 (5th Cir. 2005).

Accordingly, under the terms of SB652, the requirements of substance abuse testing and signing a consent to drug testing would be inapplicable to recipients of Title XIX benefits because federal law currently does not impose substance abuse testing or consent to such testing as a condition of eligibility for Title XIX benefits. Moreover, given the bulk of public assistance provided by TDHS emanates from Title XIX programs, see TDHS Program Descriptions located at http://www.tn.gov/humanserv/progdescr.pdf, the impact of SB652 would be severely restricted if not completely curtailed.

Furthermore, as discussed below, even where a federal program permits drug testing of applicants for federal assistance, such testing requires some quantum of individualized suspicion in order to meet federal constitutional standards.

Senate Bill 2272

SB2272 would amend the Tennessee Code by adding Tenn. Code Ann. § 71-3-167(a)(1). SB2272 provides in pertinent part:

(A) The department shall require a suspicion-based urine drug test program consistent with title 50, chapter 9, to screen each individual who applies for or who receives Temporary Assistance for Needy Families (TANF). The cost of drug testing is the responsibility of the individual tested.

(B) The department of human services shall develop a program to screen each applicant or recipient who is otherwise eligible for temporary assistance for needy families benefits under this part, and then test, using a urine dipstick five panel test, each one who the department has reasonable cause to believe, based on the screening, engages in illegal use of controlled substances.

(3) An individual who tests positive for controlled substances as a result of a drug test required under this section is ineligible to receive TANF benefits for one (1) year after the date of the positive drug test unless the individual meets the requirements of subdivision (b)(10).

SB2272, § 1. These provisions in essence require drug screening for all applicants for TANF, and disallow eligibility for TANF for one year after any positive test for drugs. The issue of drug screening under TANF was also previously addressed in this Office's opinion regarding SB102 introduced in 2007, and nothing subsequently has occurred to change that opinion. Op. Tenn. Att'y Gen. 07-84 at 4-5. This Office observed in that opinion that, while TANF does permit substance abuse testing of welfare recipients (21 U.S.C. § 862b), the Sixth Circuit Court of Appeals has held that suspicionless drug testing of TANF applicants constitutes an unreasonable search and seizure under the Fourth Amendment of the United States Constitution. Id.; Marchwinski v. Howard, 113 F. Supp. 2d 1134, 1142 (E.D. Mich. 2000), aff'd en banc, 60 Fed. Appx. 601 (6th Cir. 2003) (affirmed on rehearing by an evenly divided en banc panel). See also LeBron v. Wilkins, Case No. 6:11-cv-01473-Orl-35DAB, 2011 WL 5040993 at *7-17 (M.D. Fla. Oct 24, 2011) (finding suspicionless drug testing of TANF applicants constitutionally suspect, even if the applicant had initially consented to the drug test in order to apply for TANF benefits).

Accordingly these provisions of SB2272 are constitutionally suspect, given SB2272 authorizes suspicionless drug testing of all TANF applicants.

Senate Bill 2580

SB2580 would amend Tennessee Code Annotated, Title 71, Chapter 5, by adding Sections 2 through 10. Section 3 of SB2580 provides in pertinent part:

(a) To the extent not prohibited by federal law, the department of human services shall implement a program of substance abuse testing for each adult applicant who is otherwise eligible for temporary assistance for needy families referred to in this part as (TANF), [sic], or a successor program. The department shall require a [sic] the results of a recent urine drug test be submitted by each individual who applies for TANF. The cost of drug testing is the responsibility of the individual tested.

(f) An individual who tests positive for controlled substances as a result of a drug test required under this section is ineligible to receive TANF for one (1) year from the date of the positive drug test unless the individual meets the requirements of subsection (j).

SB2580, § 3. Like SB2272, SB2580 requires drug testing for all applicants for TANF and disallows eligibility for one year after any positive drug test. Unlike SB2272, SB2580 qualifies the requirement of drug testing for all TANF applicants by stating this requirement is mandated only "[t]o the extent not prohibited by federal law." Thus, as previously discussed, the reach of SB2580 would be severely constrained since current federal law as interpreted by the Sixth Circuit Court of Appeals prohibits suspicionless drug testing of TANF applicants as unreasonable searches and seizures under the Fourth Amendment of the United States Constitution. Marchwinski, 60 Fed. Appx. at 601.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

WARREN A. JASPER
Senior Counsel

Requested by:
Honorable Joe M. Haynes
State Senator
G-19, War Memorial Building
Nashville, TN 37243-0220