July 26, 2014

NC’s new law requiring welfare applicants be tested for drugs faces delays

Less than a week before county social service agencies are supposed to start drug testing welfare applicants under a new state law, the agencies are still awaiting guidelines from the state Department of Health and Human Services. The NC House now proposes starting the tests a year later than originally intended.

Less than a week before county social service agencies are supposed to start drug testing welfare applicants under a new state law, the agencies are still awaiting guidelines from the state Department of Health and Human Services.

“The last we heard from them is that they are still working on those rules,” said Richard Park, Division of Social Services business officer for Randolph County. “We’re still on standby.”

A DHHS spokeswoman blamed the delay on a lack of funding while the lawmaker behind the original measure said there was enough money in the budget to get started.

On Friday, the House approved a technical corrections bill, HB 1133, that included a provision to delay the drug testing until July 1, 2015, instead of the current effective date of Aug. 1, 2014. The bill will go to the Senate next week.

Some county social service officials suggested the law would be one more headache for agencies that have struggled over the past year with Medicaid and food stamp backlogs caused in part by the state’s switch to new computer systems.

Luv Sinclair, the program manager of Work First in Wake County, said the county already had a significant backlog of Medicaid applications and that drug testing would be another burden.

“We are diligently trying to work off the Medicaid backlog,” Sinclair said. “We don’t want to add any more delay to that.”

About 1,818 people in Wake County receive Work First benefits, and though not all would have to undergo drug testing – the law requires testing only if social workers suspect drug use – it’s hard to know what will be required without the rules. Sinclair said additional staff and resources could be needed.

Tina Corbett, director of the Johnston County DSS, also said that trying to conduct drug testing would be a significant burden for the county on top of its Medicaid backlog. About 300 people in Johnston County receive Work First benefits.

“Until we actually receive information and direction from the Division of Social Services or DHHS, we are not in a position nor do we have funding locally to implement drug testing,” Corbett said. “It seems unclear if funding will ultimately be appropriated.”

Processing the rules

Before most laws can be implemented, rules have to be written and then approved by several different bodies in a lengthy process that can take several months.

For the drug testing law, DHHS must approve the rules submitted to it by the Social Services Commission and receive certification from the Office of the State Budget. After receiving funding, DHHS must publish the rules online and in the state register, allow for a 60-day public comment period, make changes based on public input and then submit the rules to the Rules Review Commission for its approval.

DHHS has been stuck on the first step.

“DHHS has not submitted the rules to the Rules Review Commission at this time, so they have not been officially published,” said Kristi Clifford, press assistant in the DHHS communications office. “These rules are currently being reviewed by DHHS for submission as permanent rules.”

Some lawmakers and county representatives were informed earlier this year that temporary rules would be made available. However, Clifford said the deadline for proposing temporary rules lapsed in February, and DHHS is proceeding with permanent rules instead.

The permanent rule-making process is several months longer than the temporary one.

Sen. Jim Davis, a Republican from Franklin, said he is anxious for the rules to be approved.

“We’re dependent upon the state government to take care of that. I can’t make the state do their job,” Davis said. “I regret that they spent so much time in rule-making, because I think it’s a good bill.”

DHHS has run across its own difficulties in implementing the drug testing. In an April report to the legislature, the department noted that it hasn’t been able to find drug testing facilities in all 100 counties. As a result, it would have to initiate a statewide contract for drug testing services, a process the report said would be labor-intensive and have its own timeline.

Rep. Dean Arp, a Republican from Monroe and a primary sponsor of the House bill that became law last session, said he did not anticipate the rule-making delay.

“We tried to write into the law ample time to provide temporary rules and so forth,” Arp said.

Funding the drug tests

The legislature has also not yet allocated all the funding DHHS said is needed to implement the testing. The agency estimated that around 5,750 drug tests would be required each year at an estimated cost of $540,594. It said an additional $125,750 would be needed in the law’s first year to modernize the state’s automated case management system.

The budget proposed by the House covers the cost of modernizing systems, but only $218,733 for the testing – leaving $321,859 of the department’s cost estimate unfunded. The Senate’s proposed budget does not include funding for drug testing at all. Budget negotiations are continuing.

Clifford said the funding issues could explain the lack of progress made toward adopting the rules.

“Given the lack of funding, it’s not unusual that this would delay the rule-making process,” she said.

Gov. Pat McCrory vetoed the bill last year, saying legislators hadn’t provided sufficient funding, and that it wouldn’t help people combat substance abuse and would be difficult to implement consistently in all counties. When lawmakers overrode his veto, McCrory said he would not enforce it until sufficient funding was provided – a comment that drew a rebuke from Senate leader Phil Berger, who said the legislature expected McCrory to perform his constitutional duty.

Arp said he didn’t think the holdup had anything to do with the governor’s statement. But he added that the General Assembly had allocated $145,000 in 2013 to get the drug testing started. He also said the amount specified in the proposed House budget for 2014-2015 would be sufficient.

McCrory’s office deferred questions about whether the law would actually be enforced to DHHS. Clifford would not comment on what would happen if DHHS received less funding than it had requested.

“It would be inappropriate to speculate at this point,” she said.

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