PRINTER'S NO. 3872
No. 2870 Session of 1992
INTRODUCED BY FLICK, SAURMAN, MERRY, CLARK, GEIST, GLADECK,
WOGAN, NOYE, BARLEY, VROON AND BROWN, JUNE 24, 1992
REFERRED TO COMMITTEE ON HEALTH AND WELFARE, JUNE 24, 1992
AN ACT
1 Establishing a random drug testing program for public assistance
2 recipients; and providing for powers and duties of the
3 Department of Public Welfare, retesting and protective
4 custody of AFDC children.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Short title.
8 This act shall be known and may be cited as the Public
9 Assistance Recipient Drug Testing Act.
10 Section 2. Definitions.
11 The following words and phrases when used in this act shall
12 have the meanings given to them in this section unless the
13 context clearly indicates otherwise:
14 "AFDC." The program which provides aid to families with
15 dependent children under the act of June 13, 1967 (P.L.31,
16 No.21), known as the Public Welfare Code.
17 "Department." The Department of Public Welfare of the
18 Commonwealth.
1 "Drug." A substance, other than alcohol, that has known
2 mind-altering or function-altering effects on a human being. The
3 term includes a controlled substance as defined in section
4 802(6) of the Federal Food, Drug, and Cosmetic Act (52 Stat.
5 1040, 21 U.S.C. § 301 et seq.), a substance listed in 21 CFR
6 1308 (relating to schedules of controlled substances), a
7 controlled substance as defined in section 4 of the act of April
8 14, 1972 (P.L.233, No.64), known as The Controlled Substance,
9 Drug, Device and Cosmetic Act and a controlled substance analog
10 or volatile substance which produces the psychological and
11 physiological effects of a controlled substance through
12 deliberate inhalation, ingestion or injection.
13 "Drug test." A test, whether random or follow-up,
14 administered for the purpose of determining the presence or
15 absence of drugs within a person's body.
16 "Prescription or nonprescription medication." A drug
17 prescribed for use by a physician or other medical practitioner
18 licensed to issue prescriptions or a drug that is authorized for
19 general distribution and use in the treatment of human diseases
20 or injuries under the Federal Food, Drug, and Cosmetic Act (52
21 Stat. 1040, 21 U.S.C. § 301 et seq.).
22 "Public assistance." Assistance granted under the provisions
23 of section 432 of the act of June 13, 1967 (P.L.31, No.21),
24 known as the Public Welfare Code, including, but not limited to,
25 general assistance and AFDC. With regard to an AFDC recipient,
26 the term shall refer to only that portion of the family AFDC
27 grant specifically allocated by formula to the recipient.
28 "Public Welfare Code." The act of June 13, 1967 (P.L.31,
29 No.21), known as the Public Welfare Code.
30 Section 3. Drug testing program.
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1 (a) Establishment.--There is hereby established within the
2 department a random drug testing program for public assistance
3 recipients.
4 (b) Powers and duties of department.--The department shall:
5 (1) Determine what types of drug tests are appropriate
6 to detect drug usage by individuals.
7 (2) Establish procedural and methodological standards
8 for technical aspects of the drug tests, including, but not
9 limited to, procedural guidelines to ensure the integrity of
10 the chain of custody, acceptability standards for the margins
11 of error associated with particular tests and concentration
12 or volume thresholds at which a drug test result may be
13 deemed a positive test result for a given drug.
14 (3) Monitor the performance of laboratories and
15 personnel to assure compliance with this act and regulations
16 promulgated under this section.
17 (4) Designate approved drug rehabilitation programs.
18 (5) Provide for notice to the public assistance
19 recipient of the consequences of refusing to submit to the
20 drug test, of failing the drug test or of refusing to
21 participate in an approved drug rehabilitation program.
22 (6) Establish a procedure whereby the public assistance
23 recipient may submit medical documentation to verify the
24 recipient's use of prescription or nonprescription
25 medication. Verification, however, shall not preclude the
26 administration of the drug test.
27 (7) Provide for and develop the necessary procedures to
28 implement the follow-up testing required under section 6.
29 (8) Establish and develop the necessary procedures to
30 effectuate the provisions in section 7 that provide for
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1 protective custody of certain AFDC children.
2 Section 4. Failure of drug test.
3 (a) Drug use prohibited.--A public assistance recipient
4 shall not use a drug.
5 (b) Rehabilitation program.--A public assistance recipient
6 who is determined to have used a drug which is not a
7 prescription or nonprescription medication or which usage is in
8 violation of any Federal or State law or regulation shall be
9 required to participate immediately in a department-approved
10 drug rehabilitation program. If the recipient agrees to
11 participate in the program, the public assistance received by
12 that recipient shall continue for as long as the recipient
13 otherwise qualifies for the assistance, except as provided in
14 subsection (c), but not beyond any applicable eligibility period
15 specified in the Public Welfare Code.
16 (c) Failure to enter or complete program.--If the recipient
17 refuses to participate in a drug rehabilitation program or fails
18 to successfully complete the program, then the recipient shall
19 no longer receive public assistance until the recipient
20 resubmits to the drug test, tests drug free and otherwise
21 qualifies for assistance.
22 Section 5. Refusal to submit to drug tests.
23 A public assistance recipient who refuses to submit to drug
24 testing shall not receive assistance until the recipient submits
25 to the test, tests drug free and otherwise qualifies for
26 assistance.
27 Section 6. Retesting.
28 A public assistance recipient who tests positive for drug use
29 who enters and successfully completes a drug rehabilitation
30 program or submits to testing and tests drug free after
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1 initially refusing to submit to testing, refusing to participate
2 in a drug rehabilitation program upon testing positive or
3 failing to successfully complete a drug rehabilitation program
4 shall be subject to follow-up drug testing on a quarterly basis
5 for one year, provided the recipient is still receiving
6 assistance at the time of retesting.
7 Section 7. Protective custody for AFDC children.
8 (a) Investigation.--In cases where an AFDC recipient
9 determined to have used a drug in violation of this act is a
10 single parent, the department shall notify the child protective
11 service agency in the recipient's county of domicile, which
12 shall perform an investigation regarding the impact the exposure
13 to illicit drug use may have on the child or children residing
14 in the recipient's household. If it is determined that an
15 adverse impact exists, the agency shall seek to obtain
16 protective custody of the child or children, in accordance with
17 the provisions of 23 Pa.C.S. § 6315(b), (c), (d), (e) and (f)
18 (relating to taking child into protective custody).
19 (b) Presumption.--In any hearing regarding protective
20 custody held pursuant to 23 Pa.C.S. § 6315 or departmental
21 regulations, there shall be a rebuttable presumption that the
22 impact of the exposure to illicit drug use amounts to abuse
23 under 23 Pa.C.S. Ch. 63 (relating to child protective services)
24 and that protective custody is warranted.
25 (c) Duration.--Children held in protective custody pursuant
26 to this section shall be released to the public assistance
27 recipient upon proof that the recipient has successfully
28 completed a drug rehabilitation program.
29 Section 8. Licensed laboratories.
30 Drug tests shall only be administered through laboratories
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1 licensed by the Department of Health under the act of September
2 26, 1951 (P.L.1539, No.389), known as The Clinical Laboratory
3 Act, or licensed under the Clinical Laboratories Improvement Act
4 of 1967 (Public Law 90-174, 81 Stat. 533), and approved by the
5 Department of Health.
6 Section 9. Hearings.
7 A public assistance recipient shall be afforded the
8 opportunity for a hearing in accordance with 2 Pa.C.S (relating
9 to administrative law and procedure) prior to the termination of
10 assistance.
11 Section 10. Penalties.
12 A person who administers a drug test which, in its
13 methodologies or procedures, violates this act shall be assessed
14 a civil penalty of not less than $250 nor more than $500. For
15 purposes of this section, a failure to use approved test methods
16 or procedures on a single sample shall constitute a separate
17 offense.
18 Section 11. Rules and regulations.
19 The department shall promulgate rules and regulations to
20 carry out the provisions of this act.
21 Section 12. Federal waivers.
22 Within 90 days of the effective date of this section, the
23 department shall submit to the appropriate Federal agency a
24 request for any and all waivers of Federal law and regulations
25 and for any other approvals by the Federal Government necessary
26 for the implementation of this act. It shall be the obligation
27 of the department to enter into good faith negotiations with the
28 appropriate Federal authorities and to make every effort to
29 obtain the necessary Federal waivers and approvals.
30 Section 13. Effective date.
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1 This act shall take effect as follows:
2 (1) Sections 11 and 12 of this act shall take effect
3 immediately.
4 (2) The remainder of this act shall take effect in 12
5 months.
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