HB1904

SECTION 1. The legislature finds that it may be beneficial to require some recipients of public assistance to submit to testing for the illegal use of drugs in order to qualify for or to maintain eligibility for benefits. At least fifteen states have already passed legislation requiring drug screening or testing for public assistance applicants or recipients: Alabama, Arkansas, Arizona, Florida, Georgia, Kansas, Michigan, Mississippi, Missouri, North Carolina, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin. It would be in Hawaii's best interest to pass similar legislation that would help ensure that only persons who do not illegally use drugs, or are willing to participate in substance abuse treatment, receive public assistance, and that scarce public resources pay for necessities such as food, utilities, and housing, rather than enable addiction.

The purpose of this Act is to require the department of human services to establish and administer a two-year pilot program of suspicion-based drug screening and testing of applicants for, and recipients of, temporary assistance for needy families benefits.

SECTION 2. (a) The department of human services shall establish and administer a two-year pilot program of suspicion-based drug screening and testing for each:

(1) Applicant who is otherwise eligible for the temporary assistance for needy families program; and

(2) Recipient of benefits through the temporary assistance for needy families program.

(b) The drug screening and testing program shall include:

(1) A requirement that an applicant, upon initial application for temporary assistance for needy families program benefits, or at annual redetermination in the case of a current recipient of program benefits, shall be screened using an empirically validated drug screening tool; provided that:

(A) If the result of the drug screening tool gives the department a reasonable suspicion that the applicant or recipient has engaged in the illegal use of drugs, then the applicant or recipient shall be required to take a drug test;

(B) A refusal by an applicant or recipient to take a drug test shall result in lack of eligibility for program benefits for six months; and

(C) An applicant or recipient who tests positive for illegal use of a controlled substance shall undergo a second confirmation test using the same specimen sample from the initial positive test. The results of the confirmation test shall be used to determine final eligibility for temporary assistance for needy families program benefits;

(2) A process for allocating the cost of administering the drug tests, as follows:

(A) If an applicant or recipient receives a negative result on a drug test, the cost of administering the drug test shall be paid by the department;

(B) If an applicant or recipient receives a positive result on a drug test, refuses to enter a treatment plan, and receives a negative result on a drug test upon reapplying for benefits after six months, the cost of administering the first drug test shall be deducted from the reapplicant's first installment of program benefits, and the cost of administering the second drug test shall be paid by the department;

(C) If an applicant receives a positive result on a drug test and enters a treatment plan, the cost of administering the drug test shall be deducted from the applicant's first installment of program benefits; and

(D) If a recipient receives a positive result on a drug test and enters a treatment plan, the cost of administering the drug test shall be deducted from the recipient's first installment of program benefits after redetermination;

(3) A referral process established by the department for any applicant or recipient who receives a positive result on a drug test to be referred to an appropriate resource for drug abuse treatment or other services for an appropriate period as determined by the department; provided that:

(A) Evidence of ongoing compliance during the determined treatment period shall be required; and

(B) If an applicant or recipient is otherwise eligible during the treatment period, the applicant shall receive program benefits; provided that the applicant or recipient:

(i) Enters a drug treatment program within one week of referral by the department; and

(ii) Submits to the department proof of successful program completion within the treatment period determined by the department;

(4) A requirement that a refusal to enter a treatment plan or failure to successfully complete the treatment plan by an applicant or recipient who receives a positive result on a drug test shall result in the applicant or recipient being deemed ineligible for program benefits for six months;

(5) A requirement that an applicant or recipient be tested using no less than a five-panel drug test upon the conclusion of the determined treatment period; provided that:

(A) If an applicant or recipient receives a positive result on the drug test administered following the determined treatment period, the applicant shall be ineligible for program benefits for six months; and

(B) If an applicant or recipient who has failed a drug test reapplies for program benefits, the applicant or recipient shall test negative for illegal use of controlled substances in order to receive program benefits, and the department may provide a referral to an appropriate treatment resource for drug abuse treatment or other services; and

(6) A requirement that a dependent child's eligibility for program benefits shall not be affected by a caretaker relative's ineligibility due to positive results on a drug test; provided that an appropriate protective payee shall be designated to receive program benefits on behalf of the dependent child.

(c) A dependent child under eighteen years of age shall be exempt from the drug screening and testing requirement of this Act unless the dependent child is a parent who is also an applicant for the temporary assistance for needy families program and who does not live with a parent, legal guardian, or other adult caretaker relative.

(d) Notwithstanding any other law to the contrary, an applicant or recipient shall not be denied temporary assistance for needy families program benefits on the basis of failing a drug test if the applicant has a current and valid prescription for the drug in question or a registration certificate issued by the department of health under chapter 329, part IX, Hawaii Revised Statutes. An applicant or recipient may inform the agency administering the drug test of any prescription or over-the-counter medication that the person is taking.

(e) An applicant or recipient who receives a positive result on a drug test administered under this Act shall not be deemed to have a disability solely because of the drug test result.

SECTION 3. In developing the pilot program established by this Act, the department shall:

(1) Consult with substance abuse treatment experts;

(2) Develop appropriate screening techniques and processes to establish reasonable cause that an applicant or recipient is illegally using a drug and to establish the necessary criteria to permit the department to require the applicant or recipient to undergo no less than a five-panel drug test;

(3) Identify and select a screening tool as a part of the development of the screening technique that will be employed under this Act;

(4) Develop a plan for funding the costs of the screening and testing processes, personnel and information systems modification, and other costs associated with the development and implementation of the program; and

(5) Develop a plan for any modification of the department's information systems necessary to properly track and report the status of applicants or recipients who are screened and who must undergo testing as required by this Act. The plan shall include:

(A) A detailed analysis of costs for systems analysis, programming, and testing of modifications; and

(B) Implementation dates for completion of the modifications.

SECTION 4. (a) All information, interviews, reports, statements, memoranda, and drug test results, written or otherwise, received by the department under this Act shall be confidential and not subject to disclosure and may not be used or received in evidence, obtained in discovery, disclosed in any public or private proceedings, released to law enforcement officers, or used in any criminal proceedings.

(b) Information released contrary to this section shall not be admissible as evidence in a criminal proceeding.

(1) The department or a drug testing agency conducting the drug test from having access to an adult applicant's drug test information or using the information when consulting with legal counsel in connection with actions brought under or related to this Act or when the information is relevant to its defense in a civil or administrative matter;

(2) The reporting of child abuse, child sexual abuse, or neglect of a child; or

(3) The aggregating of any statistics, data, or other information for the purpose of fulfilling the reporting requirement established under section 6 of this Act; provided that the aggregated statistics, data, or other information is reported in a manner to protect the privacy of individual applicants for, and recipients of, temporary assistance for needy families program benefits.

SECTION 5. The department shall adopt rules, pursuant to chapter 91, Hawaii Revised Statutes, necessary to implement this Act; provided that the department shall consider:

(1) Testing procedures established by the United States Department of Health and Human Services and the United States Department of Transportation;

(2) Screening procedures recommended by the substance abuse treatment experts consulted under section 3 to determine when a person exhibits criteria indicating that there is reasonable cause to suspect that a person is likely to illegally use drugs;

(3) Body specimens and minimum specimen amounts that are appropriate for drug testing;

(4) Methods of analysis and procedures to ensure reliable drug testing results, including standards for initial tests and confirmation tests;

(5) Minimum detection levels for each applicable drug or drug metabolite for the purpose of determining a positive result;

(6) Chain of custody procedures to ensure proper identification, labeling, and handling of specimens tested; and

(7) Retention, storage, and transportation procedures to ensure reliable results of drug tests.

SECTION 6. The department shall submit a report to the legislature no later than twenty days prior to the convening of the regular sessions of 2019 and 2020. The report shall include:

(1) The number of individuals screened;

(2) The number of screened individuals for whom there was a reasonable suspicion of illegal drug use;

(3) The number of screened individuals who took a drug test;

(4) The number of screened individuals who refused to take a drug test;

(5) The number of screened individuals who received a positive result on the drug test;

(6) The number of screened individuals who received a negative result on the drug test;

(7) The number of individuals who received a positive result on a second or subsequent drug test;

(8) The costs incurred by the department for the administration of the drug screening and testing program;

(9) The number of applications and re-applications received for temporary assistance for needy families benefits in the previous year and the current year; and

(10) Any proposed legislation.

SECTION 7. As used in this Act:

"Caretaker relative" means any of the following individuals living with a minor child:

(1) A parent or stepparent;

(2) A grandparent;

(3) A sibling, half-sibling, or stepsibling;

(4) An aunt or uncle of any degree;

(5) A first cousin, nephew, or niece; or

(6) A relative by adoption within the previously named classes.

"Chain of custody" means the methodology of tracking specified materials or substances for the purpose of maintaining control and accountability from initial collection to final disposition for all materials or substances, providing accountability at each stage in handling, testing, and storing specimens and reporting test results.

"Confirmation test" means a second analytical procedure used to identify the presence of a specific drug or drug metabolite in a specimen. The test may be different in scientific principle from that of the initial test procedure and must be capable of providing requisite specificity, sensitivity, and quantitative accuracy.

"Department" means the department of human services.

"Drug" means marijuana, cocaine, methamphetamine, amphetamine, and opiates, including morphine. The director may add additional substances to this definition by rule.

"Drug test" means any chemical, biological, or physical instrumental analysis administered by a drug testing agency authorized to test under this Act for the purpose of determining the presence or absence of a drug or its metabolites.

"Drug testing agency" means an entity that has the required credentials as established by the department to administer drug tests using a person's urine, blood, or DNA that will detect and validate the presence of drugs in a person's body.

"Drug treatment program" means a service provider that provides confidential, timely, and expert identification, assessment, and resolution of drug or alcohol abuse problems affecting a person.

"Five-panel drug test" means a test for marijuana, cocaine, methamphetamine, amephetamine, and opiates, including morphine.

"Protective payee" means a caretaker relative or legal guardian of a minor child unless the caretaker relative who is an applicant for temporary assistance for needy families benefits receives a positive result on a drug test.

"Specimen" means tissue, fluid, or a product of the human body capable of revealing the presence of drugs or drug metabolites.

SECTION 8. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 9. This Act shall take effect upon its approval and shall be repealed on June 30, 2020.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1904
TWENTY-NINTH LEGISLATURE, 2018
STATE OF HAWAII