Senate Bill No. 348

(By Senators Blair, Carmichael and Karnes)

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[Introduced January 28, 2015; referred to the Committee on Health and Human Resources; and then to the Committee on Finance.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §9-3-6, relating to creation of a pilot program by the Secretary of the Department of Health and Human Resources to provide drug screening of applicants for cash assistance.

Be it enacted by the Legislature of West Virginia:

            That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §9-3-6, to read as follows:

ARTICLE 3. APPLICATION FOR AND GRANTING OF ASSISTANCE.

§9-3-6. Pilot program for drug screening of applicants for cash assistance.

            (a) The Secretary of the Department of Health and Human Resource shall implement a one-year pilot program in three counties for drug screening of applicants for cash assistance as provided in this section.

            (b) The program for drug screening applicants for cash assistance as a condition of eligibility for cash assistance and persons receiving cash assistance as a condition of continued receipt of cash assistance shall be established, subject to applicable federal law, by the secretary on or before January 1, 2016. Under the program of drug screening, the secretary shall order a drug screening of an applicant for or a recipient of cash assistance at any time when reasonable suspicion exists that the applicant for or recipient of cash assistance is unlawfully using a controlled substance or controlled substance analog. The secretary may use any information obtained by the secretary to determine whether the reasonable suspicion exists, including, but not limited to, an applicant's or recipient's demeanor, missed appointments and arrest or other police records, previous employment or application for employment in an occupation or industry that regularly conducts drug screening, termination from previous employment due to unlawful use of a controlled substance or controlled substance analog or prior drug screening records of the applicant or recipient indicating unlawful use of a controlled substance or controlled substance analog.

            (c) Any applicant for or recipient of cash assistance whose drug screening results in a positive test may request that the drug screening specimen be sent to a different drug testing facility for an additional drug screening. Any applicant for or recipient of cash assistance who requests an additional drug screening at a different drug testing facility shall be required to pay the cost of drug screening. The applicant or recipient who took the additional drug screening and who tested negative for unlawful use of a controlled substance and controlled substance analog shall be reimbursed for the cost of the additional drug screening.

            (d) Any applicant for or recipient of cash assistance who tests positive for unlawful use of a controlled substance or controlled substance analog is required to complete a substance abuse treatment program and a job skills program approved by the secretary. Subject to applicable federal laws, any applicant for or recipient of cash assistance who fails to complete or refuses to participate in the substance abuse treatment program or job skills program as required under this subsection is ineligible to receive cash assistance until completion of the substance abuse treatment and job skills programs. Upon completion of both substance abuse treatment and job skills programs, the applicant for or recipient of cash assistance is subject to periodic drug screening, as determined by the secretary. Upon a second positive test for unlawful use of a controlled substance or controlled substance analog, a recipient of cash assistance shall be ordered to complete again a substance abuse treatment program and job skills program, and shall be terminated from cash assistance for a period of twelve months, or until the recipient of cash assistance completes both substance abuse treatment and job skills programs, whichever is later. Upon a third positive test for unlawful use of a controlled substance or controlled substance analog, a recipient of cash assistance shall be terminated from cash assistance, subject to applicable federal law.

            (e) (1) If an applicant for or recipient of cash assistance is ineligible for or terminated from cash assistance as a result of a positive test for unlawful use of a controlled substance or controlled substance analog, and the applicant for or recipient of cash assistance is the parent or legal guardian of a minor child, an appropriate protective payee shall be designated to receive cash assistance on behalf of the child. The parent or legal guardian of the minor child may choose to designate an individual to receive cash assistance for the parent's or legal guardian's minor child, as approved by the secretary. Prior to the designated individual receiving any cash assistance, the secretary shall review whether reasonable suspicion exists that the designated individual is unlawfully using a controlled substance or controlled substance analog.

            (2) In addition, any individual designated to receive cash assistance on behalf of an eligible minor child is subject to drug screening at any time when reasonable suspicion exists that the designated individual is unlawfully using a controlled substance or controlled substance analog. The secretary may use any information obtained by the secretary to determine whether reasonable suspicion exists, including, but not limited to, the designated individual's demeanor, missed appointments and arrest or other police records, previous employment or application for employment in an occupation or industry that regularly conducts drug screening, termination from previous employment due to unlawful use of a controlled substance or controlled substance analog or prior drug screening records of the designated individual indicating unlawful use of a controlled substance or controlled substance analog.

            (3) A designated individual whose drug screening results in a positive test may request that the drug screening specimen be sent to a different drug testing facility for an additional drug screening. Any designated individual who requests an additional drug screening at a different drug testing facility is required to pay the cost of drug screening. The designated individual who took the additional drug screening and who tested negative for unlawful use of a controlled substance and controlled substance analog shall be reimbursed for the cost of the additional drug screening.

            (4) Upon any positive test for unlawful use of a controlled substance or controlled substance analog, the designated individual may not receive cash assistance on behalf of the parent's or legal guardian's minor child, and another designated individual shall be selected by the secretary to receive cash assistance on behalf of the parent's or legal guardian's minor child.

            (f) If a person has been convicted under federal or state law of any offense which is classified as a felony by the law of the jurisdiction and which has as an element of the offense the manufacture, cultivation, distribution, possession or use of a controlled substance or controlled substance analog, and the date of conviction is on or after January 1, 2016, the person becomes forever ineligible to receive any cash assistance unless the conviction is the person's first conviction. First-time offenders convicted under federal or state law of any offense which is classified as a felony by the law of the jurisdiction and which has as an element of the offense the manufacture, cultivation, distribution, possession or use of a controlled substance or controlled substance analog, and the date of conviction is on or after January 1, 2016, the person becomes ineligible to receive cash assistance for five years from the date of conviction.

            (g) Except for hearings before the department the results of any drug screening administered as part of the drug screening program authorized by this section are confidential and may not be disclosed publicly.

            (h) As used in this section:

            (1) "Cash assistance" means cash assistance provided to individuals under the provisions of the department's Temporary Assistance for Needy Families Program.

            (2) "Controlled substance" means the same as defined in section one hundred one, article one, chapter sixty-a of this code.

            (3) (A) "Controlled substance analog" means a substance that is intended for human consumption, and:

            (I) The chemical structure of which is substantially similar to the chemical structure of a controlled substance;

            (ii) Which has a stimulant, depressant or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance included in the schedules I or II designated in article two, chapter sixty-a of this code; or

            (iii) With respect to a particular individual, which the individual represents or intends to have a stimulant, depressant or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant or hallucinogenic effect on the central nervous system of a controlled substance included in the schedules I or II designated in article two, chapter sixty-a of this code.

            (B) "Controlled substance analog" does not include:

            (I) A controlled substance;

            (ii) A substance for which there is an approved new drug application; or

            (iii) A substance with respect to which an exemption is in effect for investigational use by a particular person under section 505 of the federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 355, to the extent conduct with respect to the substance is permitted by the exemption.

            NOTE: The purpose of this bill is to require the Secretary of the Department of Health and Human Resources to create a pilot program to provide drug screening of applicants for cash assistance.

              This section is new; therefore, strike-throughs and underscoring have been omitted.