Drug Testing and Crime-Related Restrictions
in TANF, SNAP, and Housing Assistance
Maggie McCarty
Acting Section Research Manager and Specialist in Housing
Randy Alison Aussenberg
Analyst in Nutrition Assistance Policy
Gene Falk
Specialist in Social Policy
David H. Carpenter
Legislative Attorney
September 17, 2013
Congressional Research Service
7-5700
www.crs.gov
R42394
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance
Summary
Throughout the history of social assistance programs, administrators have attempted to limit
access only to those families considered “worthy” of assistance. Policies about worthiness have
included both judgments about need—generally tied to income, demographic characteristics, or
family circumstances—and judgments about moral character, often as evidenced by behavior.
Past policies evaluating moral character based on family structure have been replaced by today’s
policies, which focus on criminal activity, particularly drug-related criminal activity. The existing
crime and drug-related restrictions were established in the late 1980s through the mid-1990s,
when crime rates, especially drug-related violent crime rates, were at peak levels. While crime
rates have since declined, interest in expanding these policies has continued.
The three programs examined in this report—the Temporary Assistance for Needy Families
(TANF) block grant, the Supplemental Nutrition Assistance Program (SNAP, formerly Food
Stamps), and federal housing assistance programs (public housing and Section 8 tenant and
project-based assistance)—are similar, in that they are administered at the state or local level.
They are different in the forms of assistance they provide. TANF provides cash assistance and
other supports to low-income parents and their children, with a specific focus on promoting work.
SNAP provides food assistance to a broader set of poor households including families with
children, elderly households, and persons with disabilities. The housing assistance programs offer
subsidized rental housing to all types of poor families, like SNAP.
All three programs feature some form of drug- and other crime-related restrictions and all three
leave discretion in applying those restrictions to state and local administrators. Both TANF and
SNAP are subject to the statutory “drug felon ban,” which bars states from providing assistance to
persons convicted of a drug-related felony, but also gives states the ability to opt-out of or modify
the ban, which most states have done. Housing assistance programs are not subject to the drug
felon ban, but they are subject to a set of policies that allows local program administrators to deny
or terminate assistance to persons involved in drug-related or other criminal activity. Housing law
also includes mandatory restrictions related to specific crimes, including sex offenses and
methamphetamine production. All three programs also have specific restrictions related to
fugitive felons.
Recently, the issue of drug testing in federal assistance programs has risen in prominence. In the
case of TANF, states are permitted to drug-test recipients; however, state policies involving
suspicionless drug testing of TANF applicants and recipients are currently being challenged in
courts. SNAP law does not explicitly address drug testing, but given the way that SNAP and
TANF law interact, state TANF drug testing policies may affect SNAP participants. The laws
governing housing assistance programs are silent on the topic of drug testing.
The current set of crime- and drug-related restrictions in federal assistance programs is not
consistent across programs, meaning that similarly situated persons may have different
experiences based on where they live and what assistance they are seeking. This variation may be
considered important, in that it reflects a stated policy goal of local discretion. However, the
variation may also be considered problematic if it leads to confusion among eligible recipients as
to what assistance they are eligible for or if the variation is seen as inequitable. Proposals to
modify these policies also highlight a tension that exists between the desire to use these policies
as a deterrent or punishment and the desire to support the neediest families, including those that
have ex-offenders in the household.
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Contents
Introduction ...................................................................................................................................... 1
Evolution of Federal Policies .................................................................................................... 1
Overview of Selected Federal Assistance Programs ................................................................. 4
TANF ................................................................................................................................... 4
SNAP ................................................................................................................................... 5
Housing Assistance ............................................................................................................. 6
Drug Testing and Crime-Related Restrictions ................................................................................. 8
TANF ......................................................................................................................................... 8
TANF Drug Testing ............................................................................................................. 8
TANF Drug Felon Ban ........................................................................................................ 9
Fleeing Felons and Other Crime-Related Restrictions in TANF ......................................... 9
Applicability of Policies in TANF ....................................................................................... 9
SNAP ....................................................................................................................................... 10
SNAP Drug Testing ........................................................................................................... 10
SNAP Drug Felon Ban ...................................................................................................... 10
“Fleeing Felon” Ban in SNAP .......................................................................................... 12
Applicability of Policies in SNAP..................................................................................... 13
Housing Assistance .................................................................................................................. 15
Drug Testing in Housing Assistance.................................................................................. 15
Drug- and Other Crime-Related Restrictions in Housing Assistance Programs ............... 17
Applicability of Policies .................................................................................................... 21
Legal Issues Involving Drug Testing Policies: Recent Developments .................................... 22
Conclusion ..................................................................................................................................... 23
Similarities and Differences .................................................................................................... 23
Considerations for Policymakers ............................................................................................. 24
Tables
Table 1. State Policies on the SNAP Drug Felony Disqualification for
Applicants and Reapplicants....................................................................................................... 12
Table 2. Summary of Federal Drug- and Other Crime-Related Restrictions in Federal
Housing Assistance Programs..................................................................................................... 20
Table A-1.State Policies on Drug Testing for TANF Assistance Applicants and Recipients
(As of June 2012) ....................................................................................................................... 26
Appendixes
Appendix. State Policies on Drug Testing in TANF ...................................................................... 26
Contacts
Author Contact Information........................................................................................................... 32
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Acknowledgments ......................................................................................................................... 32
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Introduction
This report describes and compares the drug- and crime-related policy restrictions contained in
selected federal programs that provide assistance to low-income individuals and families: the
Temporary Assistance for Needy Families (TANF) block grant, the Supplemental Nutrition
Assistance Program (SNAP, formerly Food Stamps), and the three primary federal housing
assistance programs (the public housing program, the Section 8 Housing Choice Voucher
program, and the project-based Section 8 rental assistance program). These programs were
chosen because they serve many of the same families. However, the programs also differ. They
have different drug- and other crime-related restrictions, with varying levels of federal
administration and discretion for state or local administrators.
The drug- and crime-related restrictions in TANF, SNAP, and the housing assistance programs
were developed at different times in different laws, but it appears they are intended to serve
similar purposes. To some extent, they are intended to deter people from engaging in drug-related
and other criminal activity. They may also be intended to punish individuals for engaging in
undesirable behavior. Further, when resources are limited, these policies may be intended to
direct assistance to other households who are deemed more worthy of assistance. Additionally,
particularly for housing assistance programs, drug- and crime-related restrictions may be intended
to protect vulnerable communities from the consequences of drug-related and other criminal
activity.
The report begins by providing a brief overview of the history and evolution of policies
establishing drug- and crime-related restrictions in federal assistance programs. It then briefly
describes TANF, SNAP, and the three housing programs, and then discusses the specific policies
in those programs related to drug testing and drug-related and other criminal activity. It concludes
by comparing and contrasting those policies and highlighting considerations for policymakers.
Evolution of Federal Policies
Since governments began providing assistance to the poor, policymakers have been concerned
with whether those receiving benefits were worthy of assistance.1 “Worthiness” has been defined
both by judgments of economic need—are families or individuals truly unable to meet their needs
without assistance?—and judgments of character, often as evidenced by certain behaviors. When
the federal cash assistance program began in the 1930s,2 states were permitted to consider the
“moral character” of an applicant as a factor in determining eligibility.3 This led to states adopting
policies that reflected dominant societal expectations at the time about behavior and family
structure. Examples of such policies included so-called “suitable home” rules, giving state or
1 According to Regulating the Poor by Francis Fox Piven, as early as 1550 when relief for the poor began in Lyons,
France, there were provisions to distinguish the “worthy” poor from the “unworthy” and assist only those deemed
“worthy.” Frances Fox Piven and Richard A. Cloward, Regulating the Poor: The Functions of Public Welfare (New
York: Pantheon Books, 1971).
2 The original program under the Social Security Act of 1935 was titled Aid to Dependent Children. It was renamed
Aid to Families with Dependent Children (AFDC) in 1962 and was replaced by the Temporary Assistance for Needy
Families (TANF) program in 1996.
3 Roger E. Kohn, “AFDC Eligibility Requirements Unrelated to Need: The Impact of King v. Smith,” University of
Pennsylvania Law Review, Vol. 118, No. 8 (July 1970), pp. 1219-1250.
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local administrators wide discretion to disqualify applicants for assistance, and “man in the
house” rules, penalizing unmarried mothers for cohabiting with men. These moral character
policies were the subject of controversy and legal challenge; critics condemned such policies,
arguing that, among other concerns, they had racial overtones and disproportionately affected
black families, particularly black mothers.4 States that had adopted these policies argued that they
discouraged immoral behavior.5 By the late 1960s and early 1970s, many of the policies related to
family structure and behavior were struck down by federal administrative rulings and the courts.6
Around the same time that morality tests based on family structure were being eliminated in
AFDC, worries about rates of crime and drug use were increasing across the nation. Between
1960 and 1980, violent crime rates more than tripled,7 and rates of drug use also increased
significantly.8 After first declaring a “War on Poverty,” the Johnson Administration formed the
Commission on Law Enforcement and Administration of Justice and declared a “War on Crime.”9
Several years later, the Nixon Administration declared drug abuse “public enemy number one in
the United States.”10 The federal “War on Drugs” was intensified by the Reagan Administration,
particularly in response to the “epidemic” of crack-cocaine and its associated violence. During
this period, policymakers grappled with how best to address concerns about crime and drug use,
their causes, and their disproportionate effects in poor communities, particularly predominantly
African American urban communities.11 Policymakers also struggled with the challenge of how to
distinguish between drug use as a crime and drug addiction as a public health problem.
Specific drug-related sanctions were added to certain federal assistance programs for the first
time by the Anti-Drug Abuse Act of 1988 (P.L. 100-690). The act made it the policy of the U.S.
government to create a drug-free America and included both penalties for drug offenders as well
as support for drug abuse education and prevention. So-called “user accountability” provisions
denied certain federal benefits—namely all grants, loans (including student loans), licenses, and
contracts—to persons convicted of certain drug-related crimes. Social Security, welfare programs
(including AFDC [now TANF], Food Stamps [since renamed SNAP],12 and housing assistance),
and veterans’ benefits were all exempted from these user accountability provisions in the final
law, although earlier versions of the provision had included housing assistance and veterans’
4 The concern about such policies being used to disguise systematic racial discrimination can be found in King v.
Smith, 392 U.S. 309, 321-322 (1968).
5 Roger E. Kohn, “AFDC Eligibility Requirements Unrelated to Need: The Impact of King v. Smith,” University of
Pennsylvania Law Review, Vol. 118, No. 8 (July 1970), pp. 1226.
6 For example, suitable home provisions were restricted in 1960 by the so-called “Flemming Rule,” and in King v.
Smith, 392 U.S. 309 (1968), the Supreme Court struck down Alabama’s substitute father regulation.
7 Department of Justice, Bureau of Justice Statistics, Uniform Crime Reporting Statistics, Violent Crime Rates, 1960-
2009.
8 Robert Wood Johnson Foundation, Substance Abuse: The Nation’s Number One Health Problem, Key Indicators for
Policy, Update, February 2001, pg 15.
9 President Lyndon B. Johnson’s Annual Message to the Congress on the State of the Union, January 17, 1968,
available at http://www.lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/680117.asp.
10 Richard M. Nixon, Remarks About an Intensified Program for Drug Abuse Prevention and Control, June 17, 1971,
available at http://www.presidency.ucsb.edu/ws/index.php?pid=3047#axzz1kxlMtfYk.
11 Roland G. Fryer, “Measuring the Impact of Crack Cocaine,” National Bureau of Economic Research, Cambridge,
MA, 2005, available at http://papers.nber.org/papers/w11318.
12 P.L. 110-246 renamed the Food Stamp program the Supplemental Nutrition Assistance Program, beginning
October 1, 2008.
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benefits in the definition of federal benefits.13 During debate on these user accountability
provisions, supporters argued that they would serve as a deterrent to drug use,14 while detractors
criticized these provisions as “post-conviction penalties” to further punish drug offenders.15
The act included congressional findings expressing specific concern about the role drugs and
drug-related crimes were playing in public housing communities. While the act excluded housing
assistance programs from the federal user accountability bans, it did include provisions permitting
local administrators to adopt policies restricting persons involved with drugs or drug-related
criminal activity from receiving federal public housing assistance and allowing for drug-related
and other criminal activity to serve as grounds for termination of tenancy.
Less than a decade later, Congress passed and President Clinton signed the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA; P.L. 104-193).
PRWORA ended almost four decades of debate about how to reform the nation’s cash welfare
program. During the welfare reform debates of the 1980s and 1990s leading up to PRWORA,
welfare receipt was often mentioned together with crime and drug addiction as problems
afflicting the urban “underclass.”16
While the focus of PRWORA was to fundamentally restructure cash assistance to make it time-
limited and work-conditioned, it also included provisions to address the associated social ills of
crime and drugs. The law made persons convicted of drug felonies subject to a lifetime ban on
receiving assistance under both the newly created TANF program as well as the federal Food
Stamp program (now SNAP).17 This provision was added during Senate floor consideration of the
bill and was the subject of only limited debate, with four Senators speaking briefly on the topic.
The sponsor, Senator Phil Gramm, argued “if we are serious about our drug laws, we ought not
give people welfare benefits who are violating the Nation’s drug laws.” Opponents raised
concerns about the implications for people who are addicted and their children.18 The act also
authorized states to drug-test TANF recipients and to sanction recipients who test positive for
drug use. It also added prohibitions on assisting “fleeing felons” to all federal assistance
programs, including TANF, SNAP, and housing assistance.19
Just prior to PRWORA, Congress passed a housing law (P.L. 104-120) that significantly
expanded crime- and drug-related restrictions in assisted housing programs. The primary focus of
13 While housing assistance programs and veterans’ benefits were ultimately excluded from the definition of federal
benefit, they were included in the House version of the Anti Drug Abuse Act, H.R. 5210, 100th Congress. The Senate
version of the bill included public housing among the exempted programs. For a discussion, see Christopher D.
Sullivan, “‘User-Accountability’ Provisions in the Anti-Drug Abuse Act of 1988: Assaulting Civil Liberties in the War
on Drugs,” 40 Hastings L.J. 1223 (1989).
14 Representative McCollum, Congressional Record, vol. 134 (September 8, 1988), p. H23000.
15 Representative Cardin, Congressional Record, vol. 134 (September 8, 1988), p. H23002.
16 For example, journalist Ken Auletta opens his 1982 book The Underclass with the question: “who are the people
behind the bulging crime, welfare, and drug statistics—and the all-too-visible rise in anti-social behavior that afflicts
most American cities?” Ken Auletta, The Underclass (New York: Random House, 1982).
17 See footnote 12.
18 Congressional Record, daily edition, vol. 142 (July 23, 1996), p. S8498.
19 The fleeing felon restrictions were incorporated from stand-alone legislation, S. 599 (104th Congress). During his
introductory remarks, the sponsor of the legislation, Senator Santorum (PA), cited a need for information sharing with
law enforcement and cited several instances of specific persons who had been receiving public assistance while they
were fugitives. Congressional Record, vol. 53 (March 22, 1995), p. S4383.
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the law was to extend the expiring authorizations for a number of housing programs, but it also
included a section related to the “safety and security of public and assisted housing.” Specifically,
the section made people who had been evicted from assisted housing for drug-related activities
ineligible for assistance for three years and permitted local administrators to restrict assistance to
families based on demonstrated patterns of drug use or alcohol abuse. This law was enacted
following President Clinton’s 1996 State of the Union address in which he claimed that the nation
faced a great challenge to take its streets back from crime, drugs, and gangs.20 In reference to
assisted housing, he stated that “criminal gang members and drug dealers are destroying the lives
of decent tenants.”21
Just two years after enactment of PRWORA and P.L. 104-120, Congress passed the Quality
Housing and Work Opportunity Reconciliation Act of 1998 (QHWRA; P.L. 105-276), a major
assisted housing reform law. The law modified and expanded the crime- and drug-related
provisions previously enacted in 1988 and 1996. QHWRA also included several provisions to
restrict access to housing assistance for persons involved with several specific crimes, namely,
production of methamphetamines and sex offenses. In the case of the methamphetamine
restriction, the provision was added during floor debate in the Senate, and the discussion of the
amendment by its sponsors recounted the dangers associated with exploding methamphetamine
production labs, citing several anecdotes related to such labs in assisted housing.22 The
amendment related to sex offenders was also offered as a House floor amendment.23 The sponsor
spoke of a specific anecdote in which a child living in public housing had been assaulted by a
person previously convicted of a sex offense, as well as the dangers sex offenders may pose to
communities more generally.24
Overview of Selected Federal Assistance Programs
The following section of the report briefly describes TANF, SNAP, and major housing assistance
programs. The next section of the report specifically discusses the drug- and crime-related
provisions of these programs.
TANF
The Temporary Assistance for Needy Families (TANF) block grant provides grants to states,
Indian tribes, and territories for a wide range of benefits, services, and activities that address
economic disadvantage. TANF is best known for funding state cash welfare programs for low-
income families with children. However, in FY2011 cash welfare represented only 29% of TANF
funds. TANF funds a wide range of activities that seek both to ameliorate the effects of and
address the root causes of child poverty. In addition to state block grants, TANF includes
competitive grants to fund healthy marriage and responsible fatherhood initiatives.
20 Statement of President William Jefferson Clinton, State of the Union Address, U.S. Capitol, January 23, 1996.
21 Ibid.
22 Senate debate, Congressional Record, daily edition, vol. 144 (July 16, 1998), pp. S8366-S8367.
23 The amendment was added during floor debate of H.R. 2 (105th Congress), which was incorporated into P.L. 105-
276. Congressional Record, daily edition, vol. 143 (May 6, 1997), p. H2191.
24 Ibid.
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The TANF cash assistance program provides aid to very poor families with children. Many of
these families are headed by a single mother, though TANF also provides aid to families of
children cared for by non-parent relatives (e.g., grandparents, aunts, and uncles). States determine
the rules that govern financial eligibility for TANF cash assistance. States also determine the rules
for how much a family receives in assistance (there is no federal eligibility floor). In 2010, the
maximum benefit for a family of three was $923 per month in Alaska, or 48% of poverty-level
income. New York had the highest benefits in the lower 48 contiguous states and the District of
Columbia, paying $753 per month (49% of poverty guidelines). Mississippi, the state with the
lowest benefit levels, paid a family of three a maximum of $170 per month, 11% of poverty
guidelines. The maximum benefit is generally the amount paid for a family with no other income
who is complying with program requirements. Federal law limits cash assistance to a family with
an adult to 60 months (five years of benefits). Additionally, states are subject to work
participation standards and are required to have a specified percentage of their cash assistance
families engaged in work or job preparation activities. In FY2011, TANF cash assistance was
received by 1.9 million families, which had 1.2 million recipient adults and 3.4 million
recipient children.
Almost all federal policy for TANF relates to its cash assistance programs. However, TANF also
funds a wide range of other benefits and services, including help to the working poor (child care,
refundable tax credits), subsidized jobs, pre-kindergarten early childhood education, and benefits
and services for families at risk of having their children removed from the home because of abuse
and neglect. States have considerable discretion in designing these programs, which are not
subject to time limits, work requirements, or the drug testing and crime-related restrictions
discussed in this report. There are no caseload figures to describe the number of families
receiving TANF benefits other than cash assistance.
The TANF block grant is administered at the federal level by the Department of Health and
Human Services (HHS). State or local welfare offices administer the cash assistance funded
through TANF. TANF benefits or services other than cash assistance are administered by a range
of state and local governmental entities as well as local (governmental, nonprofit, or for-profit)
service providers. The program is funded with mandatory federal appropriations, subject to a
ceiling. States participating in the program must also meet a maintenance of effort requirement.
The block grant was funded at $17.2 billion in FY2011 and states were required to contribute at
least another $10.4 billion that year.25
SNAP
SNAP (formerly Food Stamps) provides benefits (through the use of electronic benefit transfer
cards) that supplement low-income recipients’ food purchasing power. Benefits vary by
household size, income, and expenses (like shelter and medical costs) and averaged $134 per
person per month for FY2011. All 50 states, the District of Columbia, Guam, and the Virgin
Islands participate in SNAP.26 In FY2010, SNAP had average monthly participation of
25 This amount includes $16.5 billion for the basic block grant to the states, $0.1 billion for the territories, $0.2 billion
for TANF supplemental grants, and $0.3 billion for TANF contingency funds (detail does not add to total because of
rounding). For more information, see CRS Report RL32760, The Temporary Assistance for Needy Families (TANF)
Block Grant: Responses to Frequently Asked Questions, by Gene Falk.
26 In lieu of SNAP benefits, (1) Puerto Rico operates a nutrition assistance block grant program using rules very similar
to the SNAP; (2) over 250 Indian reservations operate a food distribution program with eligibility rules similar to
SNAP; and (3) American Samoa and the Northern Marianas receive nutrition assistance block grants for programs
(continued...)
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approximately 40.3 million individuals in 18.6 million households. Nearly half (47%) of
participants were under age 18; another 8% were age 60 or older.
In general, eligible households must meet a gross income test (monthly cash income below 130%
of the federal poverty guidelines), a net income test (monthly cash income subtracting SNAP
deductible expenses at or below 100% of the federal poverty guidelines), and have liquid assets
under $2,000. However, households with elderly or disabled members do not have to meet the
gross income test and may have greater assets (under $3,250).27 Recipients of TANF cash
assistance, Supplemental Security Income (SSI), or state-funded General Assistance are
categorically eligible for SNAP. The state option of broad-based categorical eligibility also allows
for the modification of some SNAP eligibility rules and has resulted in the vast majority of states
not utilizing an asset test for the SNAP program because states deem an applicant eligible based
on a TANF-funded benefit.28
SNAP is administered by the U.S. Department of Agriculture’s Food and Nutrition Service
(USDA-FNS). The program is co-administered by state agencies, usually the same human
services entities that administer the states’ TANF cash assistance programs. SNAP law includes
many state options and opportunities to seek waivers, such that for some aspects of the law there
can be considerable state-to-state variation.29 This is particularly the case for some of the crime-
related policies discussed in this report.
Virtually all of the funding for SNAP is mandatory, although it is still subject to the congressional
appropriations process as an “appropriated entitlement.” SNAP benefits are 100% federally
funded, and the federal government shares state administrative costs 50/50. In FY2011, SNAP
obligated approximately $70 billion.30
Housing Assistance
The federal government funds three primary direct housing assistance programs for low-income
individuals and families: the public housing program,31 the Section 8 Housing Choice Voucher
program,32 and the Section 8 project-based rental assistance program.33 Combined, these
(...continued)
serving their low-income populations.
27 The Food and Nutrition Act adjusts SNAP asset limits for inflation and rounds down to the nearest $250. For
FY2012, the limits are $2,000 and $3,250, as described in this paragraph.
28 For more on categorical eligibility, see CRS Report R42054, The Supplemental Nutrition Assistance Program:
Categorical Eligibility, by Gene Falk and Randy Alison Aussenberg.
29 U.S. Department of Agriculture, Food and Nutrition Service, Program Development Division, Supplemental
Nutrition Assistance Program: State Options Report, Ninth Edition, November 2010.
30 See Table 18 of CRS Report R41964, Agriculture and Related Agencies: FY2012 Appropriations, coordinated by
Jim Monke. This approximate total does not include the funds in the SNAP account used to purchase The Emergency
Food Assistance Program (TEFAP) commodities and does include various grants that are neither benefits nor state
administrative costs.
31 The program is codified at 42 U.S.C. §1437d. For more information about the public housing program, see CRS
Report R41654, Introduction to Public Housing, by Maggie McCarty.
32 The program is codified at 42 U.S.C. §1437f(o). For more information, see CRS Report RL32284, An Overview of
the Section 8 Housing Programs: Housing Choice Vouchers and Project-Based Rental Assistance, by Maggie
McCarty.
33 The program is codified at 42 U.S.C. §1437f. For more information about the project-based Section 8 program, see
(continued...)
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programs serve roughly 4 million low-income households, including households made up of
persons who are elderly and persons who have disabilities, families with and without children,
and single adults. All three programs are 100% federally funded, and due to resource constraints,
combined serve roughly only one out of every three or four eligible families. All three programs
offer housing to low-income families that costs no more than 30% of family income; however, the
form the assistance takes varies across the three programs. Further, while all three programs are
administered at the federal level by the Department of Housing and Urban Development (HUD),
the programs vary in their local administration.
In the case of the public housing program, assistance is provided in the form of low-rent housing
units that are subsidized by the federal government but owned and administered by local, quasi-
governmental public housing authorities (PHAs). In the case of the Section 8 voucher program,
assistance is provided in the form of rental vouchers that families can use to secure the housing of
their choice in the private market. Like in the public housing program, vouchers are federally
funded but administered at the local level by PHAs. In the case of the Section 8 project-based
rental assistance program, assistance is provided in the form of low-rent housing units subsidized
by the federal government but owned and administered by private property owners (both for-
profit and nonprofit).
In the case of all three programs, federal policies govern basic income eligibility and the method
for determining tenant rent and subsidy level. However, owners and PHAs have discretion to set
their own policies related to screening tenants for suitability for entrance to the program and for
tenancy in a given unit. In the case of public housing and the Section 8 voucher program,
suitability for admittance to the program is determined by the PHAs that administer the program
and their discretionary screening policies are generally contained in administrative plans
developed by the PHAs. After families have been screened by PHAs for suitability for the
programs, landlords can further screen tenants for suitability for tenancy in their units. In the case
of the voucher program, private landlords can screen tenants wishing to lease from them using
any criteria they wish.34 In the case of the public housing program, since PHAs are the landlords,
they can choose to do additional screening for suitability for specific public housing
developments. In the case of the Section 8 project-based rental assistance program, since the
private property owner is both the program administrator and the landlord, s/he screens tenants
for both suitability for the program and suitability for tenancy.
In FY2011, the three housing assistance programs combined received over $34 billion in
discretionary appropriations.35
(...continued)
CRS Report RL32284, An Overview of the Section 8 Housing Programs: Housing Choice Vouchers and Project-Based
Rental Assistance, by Maggie McCarty.
34 As long as those criteria comply with federal, state, and local law, including Fair Housing laws.
35 See Table 2 of CRS Report R41700, Department of Housing and Urban Development (HUD): FY2012
Appropriations, coordinated by Maggie McCarty. Total includes the following accounts: Tenant-Based Rental
Assistance, Project-Based Rental Assistance, Public Housing Operating Fund, Public Housing Capital Fund, and HOPE
VI.
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Drug Testing and Crime-Related Restrictions
This section of the report describes specific federal TANF, SNAP, and housing assistance policies
on drug testing and pertaining to drug-related and other criminal activity engaged in by applicants
and recipients. In some cases, the federal policies are prescriptive; in other cases, they leave
discretion to the state or local administering entity.
TANF
As mentioned above, all federal drug and crime-related restrictions in TANF are for TANF
“assistance”—essentially, the monthly ongoing cash benefit provided to needy families with
children.36 These restrictions do not apply to the broader set of benefits and services that are
funded through the TANF block grant. States have broad latitude in determining for whom and
how these non-cash benefits and services are structured, and though not required by federal law,
they may include restrictions related to drugs and crime.
TANF Drug Testing37
The 1996 welfare reform law gave states the option of requiring drug tests for TANF recipients
and penalizing those who fail such tests.38 As of June 2012, 19 states had policies to require either
applicants or recipients to undergo a drug test. (See Appendix for details on state TANF drug
testing policies.) Among those 19 states, only Florida and Georgia require all applicants to
undergo a drug test. Several other states (Idaho, Louisiana, Missouri, Oklahoma, Tennessee, and
Utah) require that applicants be screened for substance abuse and subsequently tested if that
screening indicates that the person is at risk for substance abuse. Arizona requires testing when
there is “reasonable cause” to believe an individual engages in illegal use of controlled
substances. South Carolina requires testing of those identified as requiring substance abuse
treatment. Several additional states (Connecticut, Indiana, Maine, Maryland, Minnesota,
Montana, New Jersey, Pennsylvania, and Wisconsin) require drug testing of applicants and/or
recipients who had previously been convicted of a drug felony.
In general, TANF requires states to conduct an assessment of the skills, prior work experience,
and employability of each adult recipient (or teen who dropped out of high school).39 There is no
explicit mention of drug testing or screening as a part of this assessment, but states have
discretion in how they want to implement the assessment. Moreover, TANF allows states to
establish Individual Responsibility Plans (IRPs) for their TANF families on the basis of that
assessment and the IRP may require participation in a substance abuse treatment program. A
family may be sanctioned for failure to comply with its IRP.
36 In addition to basic cash assistance, “assistance” includes both transportation aid and child care subsidies provided to
nonworking families with children.
37 For an overview of drug testing and screening policies in states, see Office of the Assistant Secretary for Policy and
Evaluation, Drug Testing Welfare Recipients: Recent Proposals and Continuing Controversies , November 2011,
http://aspe.hhs.gov/hsp/11/DrugTesting/ib.shtml.
38 Section 902 of P.L. 104-193.
39 42 U.S.C. §608(b)(1).
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TANF Drug Felon Ban
The 1996 welfare law bars states from providing TANF assistance to persons convicted of a
felony for possession, use, or distribution of illegal drugs, but it also gives states the ability to
opt-out of the ban or modify the period for which the ban applies.40 States can opt-out or modify
the ban only through enacting a law, so it requires an affirmative act by the state’s legislature and
governor. (The statutory requirement, and the ability of states to opt-out of it, also applies to
SNAP benefits; see “SNAP” later in this report.) The ban on drug felons in TANF applies only to
TANF “assistance,” which is essentially ongoing cash assistance benefits. It does not apply to
other TANF benefits and services such as child care for working families, refundable tax credits,
or subsidized jobs.
The majority of states have either opted-out of or modified the drug felon ban in their TANF
programs. According to the Legal Advocacy Center, a prisoner re-entry advocacy group, as of
December 2011 13 states had opted out of the drug felon ban and 26 states had modified the ban,
leaving only 12 states fully implementing the ban.41
Fleeing Felons and Other Crime-Related Restrictions in TANF
The 1996 welfare law bars “fugitive” or “fleeing” felons from assistance under TANF and other
specified public assistance. That is, a person fleeing to avoid prosecution, custody, or confinement
after conviction for a felony or violating a condition of probation or parole is ineligible for
assistance. HHS regulations are generally silent on how states are to implement and enforce this
ban under the TANF program. However, USDA has proposed detailed regulations for SNAP, a
program administered at the state level, usually in the same office as TANF cash assistance. States
sometimes adopt SNAP procedures for their TANF cash assistance programs as well, to ease
administrative burdens. (See “SNAP” fleeing felons discussion later in this report.)
In addition to the drug felon ban and fleeing felon ban, TANF law includes a 10-year prohibition
on assisting those who have committed welfare fraud by applying for benefits in more than one
state.42 The fraud could involve applying in multiple states for TANF, SNAP, or Supplemental
Security Income (SSI). The 10-year prohibition begins on the date the individual was convicted in
a federal or state court for such a crime.
Applicability of Policies in TANF
Generally, TANF provides benefits to families with dependent children. TANF financial
eligibility rules and benefit amounts are solely determined by the states. Federal law is silent on
these two matters. Most states base TANF cash assistance benefits on family size, with larger
families receiving larger benefits (all else being equal).
States have a great deal of flexibility in how to apply drug- and other crime-related restrictions on
benefits. The federal drug felon ban, fleeing felon provisions, and welfare fraud provisions apply
40 Section 115 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104-193).
41 Note that the total adds to 51 because it includes Washington, DC. See http://www.lac.org/doc_library/lac/
publications/HIRE_Network_State_TANF_Options_Drug_Felony_Ban.pdf.
42 42 U.S.C. §602(a)(8).
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specifically to individuals, who individually may be barred from participation under
these policies.
SNAP
SNAP Drug Testing
For the most part, USDA does not allow states to use drug testing in determining eligibility for
the Supplemental Nutrition Assistance Program.43 There are two exceptions to this rule; both give
states discretion44 and relate to the interrelationship of SNAP with TANF and the law that created
TANF (PRWORA, P.L. 104-193).
As described earlier, PRWORA permanently disqualified applicants with a felony drug conviction
from participating in TANF or SNAP. However, state legislatures are permitted to opt-out or
modify the drug felon ban.45 Some states have chosen to modify the ban by legislating that those
convicted of a drug felony may be eligible for SNAP benefits subject to a drug test. As of August
2012, three states have modified the drug felon ban in this way—Maryland, Minnesota, and
Wisconsin. (The drug felon ban and state options within are discussed further below.)
A SNAP participant may also be disqualified from SNAP based on noncompliance with a drug
testing requirement in other programs in states that implement such a requirement. SNAP state
agencies may choose to disqualify a SNAP recipient who fails to perform an action required by
another means-tested program, such as TANF.46 For example, a state that disqualifies someone
from TANF (or another means-tested program) for not participating in or failing a drug test may
also disqualify that individual from SNAP. Federal regulation is clear that this comparable
disqualification policy applies only to ongoing SNAP cases and not to new applicants. Therefore,
a past TANF disqualification will not, in and of itself, disqualify an applicant to the SNAP
program.
SNAP Drug Felon Ban
As noted earlier, although federal SNAP law bars drug felons from participating in the program, a
state may opt to serve such felons by waiving or modifying the requirement.
PRWORA prohibited states from providing SNAP (then, Food Stamps) to convicted drug felons
unless the state passes legislation to extend benefits to convicted drug felons. According to
USDA-FNS’s August 2012 state options report,47 the majority of states have either modified or
43 Section 5(b) of the Food and Nutrition Act, codified at 7 U.S.C. §2014(b), “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” (emphasis
added).
44 SNAP State Options Report, August 2012, http://www.fns.usda.gov/snap/rules/Memo/Support/State_Options/10-
State_Options.pdf .
45 7 C.F.R. §273.11(m)
46 7 U.S.C. §2015(i); 7 C.F.R. §273.11(k).
47 SNAP State Options Report, August 2012, http://www.fns.usda.gov/snap/rules/Memo/Support/State_Options/10-
State_Options.pdf.
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eliminated the ban on SNAP benefits for convicted drug felons. (See Table 1.) In addition to three
states’ addition of a drug test, other state modifications to disqualification include limiting the
types of drug felonies, requiring participation in drug treatment, or requiring only a temporary
disqualification.
The Federal Interagency Reentry Council, a group that includes USDA, published a fact sheet
outlining the ways in which SNAP remains open and accessible to formerly incarcerated
individuals in general (not specifically drug felons).48 They emphasize several ways that the
SNAP program remains accessible to those who may be in transition due to a recent
incarceration. For instance, an applicant may still receive SNAP benefits if the applicant does not
have a mailing address and may apply for SNAP without a valid state-issued identification card.49
48 Federal Interagency Reentry Council , “Reentry Mythbuster on SNAP Benefits,” http://www.fns.usda.gov/snap/
government/pdf/SNAP_mythbusters.pdf, accessed May 2012.
49 Federal Interagency Reentry Council, pp. 2-3.
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Table 1. State Policies on the SNAP Drug Felony Disqualification for
Applicants and Reapplicants
Lifetime Disqualification for
No Disqualification for Drug
Drug Felons (12)
Felons (21)
Modified Disqualification (20)
Alabama
Delaware
Arkansas
Alaska
District of Columbia
California
Arizona
Illinois
Colorado
Georgia
Iowa
Connecticut
Guam
Kansas
Florida
Mississippi
Maine
Hawaii
Missouri
Massachusetts
Idaho
North Dakota
New Hampshire
Indiana
South Carolina
New Jersey
Kentucky
Texas
New Mexico
Louisiana
Virgin Islands
New York
Marylanda
West Virginia
Ohio
Michigan
Oklahoma
Minnesotaa
Oregon
Montana
Pennsylvania
Nebraska
Rhode Island
Nevada
South Dakota
North Carolina
Utah
Tennessee
Vermont
Virginia
Washington
Wisconsina
Wyoming
Source: Table prepared by CRS based on USDA-FNS SNAP State Options Report, August 2012 and additional
information from Arkansas SNAP Policy Manual.
a. This state requires drug felons to pass a drug test before receiving benefits.
“Fleeing Felon” Ban in SNAP
As discussed earlier in this report, PRWORA included provisions that prohibit so-called “fugitive
felons” from receiving certain public assistance benefits, including SNAP benefits. Specifically,
persons fleeing to avoid prosecution, custody, or confinement after conviction for a felony or
violating a condition of probation or parole are ineligible for SNAP benefits. In 2008, the farm
bill required that USDA define related terms and “ensure that State agencies use consistent
procedures.”50 Following the 2008 law, USDA-FNS recently proposed revisions to the regulations
on fleeing felons’ treatment in SNAP.
50 Section 4120 of the 2008 farm bill (P.L. 110-246) added the following to this section of the law : “(2) The secretary
(continued...)
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The current regulations related to the “fleeing felon” provision simply restate the 1996 statute:
no member of a household who is otherwise eligible ... shall be eligible to participate in the
program as a member of that or any other household during any period during which the
individual is (A) fleeing to avoid prosecution, or custody or confinement after conviction,
under the law of the place from which the individual is fleeing, for a crime, or attempt to
commit a crime, that is a felony under the law of the place [or a high misdemeanor in New
Jersey], (B) violating a condition of probation or parole imposed under a Federal or State
law.51
USDA-FNS promulgated this final rule in January 2001 together with the implementation of
other PRWORA provisions;52 the agency also released guidance at the time of promulgating this
rule.53
In August 2011, USDA-FNS proposed a rule to implement the 2008 farm bill’s changes.54 The
proposed rule discusses the policy problems at length in the preamble, including such issues as
accessing law enforcement data, interstate law enforcement issues, variable impact of warrants
that are not being enforced, and inconsistent interpretation between agencies.
The proposed rule includes more detailed definitions for “fleeing” and “actively seeking.” The
proposed rule also specifies that for a probation or parole violator to be “fleeing,” the individual
“must have violated a condition of his or her probation or parole and law enforcement must be
actively seeking the individual” (emphasis added). The proposed rule also lays out procedural
protections and consistencies; it assigns timeframes for law enforcement and SNAP agency
responsibilities, and it also requires that the SNAP agency continue to process the SNAP
application “while verifying fleeing felon or probation or parole violator status.” The proposed
rule generally appears to address situations where law enforcement is no longer enforcing a
warrant as well as providing clarification for what officially constitutes a probation violation.
Applicability of Policies in SNAP
Many factors are considered in calculating the size of the monthly SNAP benefit that a household
receives, but two of the main considerations are the size of the household (the larger the
household, the larger the monthly benefit) and the household’s income (the higher the income, the
smaller the monthly benefit).55 For these reasons, drug testing and criminal justice
disqualifications can affect even those household members that have not been disqualified. When
(...continued)
shall (A) define the terms ‘fleeing’ and ‘actively seeking’ for purposes of this subsection; and (B) ensure that State
agencies use consistent procedures ... that disqualify individuals who law enforcement authorities are actively seeking
for the purpose of holding criminal proceedings against the individual” (emphasis added).
51 7 C.F.R. §272.1(c)(1)(vii) (disclosure), §273.1(b)(7)(ix) (special household requirements), §273.2(b)(4)(ii) (privacy
act statement), and §273.11(n) (fleeing felons and probation or parole violators).
52 U.S. Department of Agriculture, “Food Stamp Program: Personal Responsibility Provisions of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996,” 66 Federal Register 4438-4471, January 17, 2001.
53 http://www.fns.usda.gov/snap/rules/Memo/2001/Fleeingfelons.htm;
54 Federal Register on August 19, 2011, http://www.gpo.gov/fdsys/pkg/FR-2011-08-19/pdf/2011-21194.pdf.
55 This report is not intended to be a thorough treatment on SNAP eligibility. For a more detailed discussion of
eligibility in the SNAP program and state-based options within, please see CRS Report R42054, The Supplemental
Nutrition Assistance Program: Categorical Eligibility, by Gene Falk and Randy Alison Aussenberg.
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it comes to disqualifying a drug-related felon or imposing other PRWORA-related
disqualifications, to what extent that individual, the individual’s assets, and the individual’s
income are included in the household’s eligibility determination and benefit calculation are
significant for the entire household’s benefits.
Generally, everyone who lives together and purchases and prepares meals together is considered a
SNAP household. Some individuals who live together, such as husbands and wives, are included
in the same household, even if they purchase and prepare meals separately. If a member of the
household is elderly or disabled, that member (and the member’s spouse) may be able to qualify
as a separate household if they have income below 165% of the federal poverty guidelines.
As certain household members may be ineligible for SNAP (for example, certain legal
immigrants), whether and the extent to which the income of such ineligible members is included
in the calculation for SNAP benefits depends on the member’s reason for ineligibility. In the case
of disqualified drug-related felons, per current USDA-FNS regulations, the individual is excluded
from the household size but the household (if the drug-related felon is part of a larger household)
remains eligible for benefits.56 As an illustration, if an apartment houses a mother subject to the
drug-felon ban, an eligible father, and an eligible toddler, the household would be considered to
have two members for purposes of SNAP.
SNAP law defines income as “income from whatever source” but also explicitly excludes dozens
of income sources.57 USDA-FNS regulations, in response to comments at the time of final
promulgation,58 require state agencies to count all of the disqualified individual’s assets and only
a pro rata share (as opposed to all) of the disqualified individual’s income.59 This applies to
individuals disqualified due to a modified drug-related felon ban as well as those disqualified due
to comparable disqualification. Recalling the example household above, if the disqualified mother
is the only household member with an income, two-thirds of her income will be used to determine
eligibility and benefit level for the household of two (father and toddler).
As an additional caveat, USDA-FNS regulations give states the option, within certain parameters,
to align SNAP income requirements with state TANF or Medicaid policy. As of November 2010,
39 states have opted for this alignment (either assets, income, or both).60 It is possible that
TANF’s or Medicaid’s policies on the calculation of income and assets thereby have an impact on
how a disqualified individual’s assets or income is treated.
56 7 C.F.R. §273.11(k).
57 Income exclusions are listed in §5(d) of the Food and Nutrition Act of 2008, codified at 7 U.S.C. §2014(d).
58 U.S. Department of Agriculture, “Food Stamp Program: Personal Responsibility Provisions of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996,” 66 Federal Register 4448-4449, January 17, 2001.
59 Formula in 7 C.F.R. §273.11(c)(2), “This pro rata share is calculated by first subtracting the allowable exclusions
from the ineligible member’s income and dividing the income evenly among the household members, including the
ineligible members. All but the ineligible members’ share is counted as income for the remaining household members.”
This same formula is applied for Social Security number disqualifications, child support disqualification, and those
ineligible Able-Bodied Adults without Dependents (ABAWDs).
60 See 7 C.F.R. §273.9(c)(19) and SNAP State Options Report, November 2010, http://www.fns.usda.gov/snap/rules/
Memo/Support/State_Options/9-State_Options.pdf.
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Changes to SNAP Drug Testing and Crime-Related Restrictions Proposed in
113th Congress Farm Bills (S. 954, H.R. 1947, H.R. 3102)
During the 113th Congress, the Senate passed and the House considered farm bill proposals to change current law on
SNAP drug testing and crime-related restrictions. The “farm bill” is an omnibus reauthorization of multiple agriculture
and nutrition programs. The 2008 farm bill expired on September 30, 2012, and many of the provisions were
extended by P.L. 112-240, a one-year extension. With the extension expiring on September 30, 2013, both the House
and the Senate have moved to formulate a new farm bill. On June 10, 2013, the Senate approved the Agriculture
Reform, Food, and Jobs Act of 2013 (S. 954) by a vote of 66-27. On June 20, the House defeated the Federal
Agriculture Reform and Risk Management Act of 2013 (H.R. 1947) by a vote of 195-234.61
Drug testing changes proposed in the House: During House floor consideration of H.R. 1947, the House
passed an amendment (H.Amdt. 196) by voice vote to give states the option to enact legislation to provide for testing
SNAP applicants for the unlawful use of control ed substances. H.Amdt. 196 did not provide any additional funding for
such testing and provided that such an option would be “at the full cost to [the] State.” The H.Amdt. 196 language
was also included in H.R. 3102, the Nutrition Reform and Work Opportunity Act of 2013. Drug testing was not
proposed during Senate consideration of S. 954.
Proposals to disqualify certain ex-offenders passed Senate, were considered on House floor:62
In the Senate, S.Amdt. 1056 was introduced on May 21, 2013, and on May 22, it was agreed to by unanimous
consent.63 S.Amdt. 1056 was incorporated as Section 4020 of S. 954. In the House, the Rules Committee made in
order an amendment, designated #49 in H.Rept. 113-117. On June 19, this amendment was incorporated into an en
bloc amendment (H.Amdt. 220) and subsequently adopted by voice vote.
Both Section 4020 of S. 954 and H.Amdt. 220 would bar individuals convicted of specified federal crimes and to-be-
determined state and tribal crimes from receiving SNAP benefits. The amendment would still al ow the disqualified
ex-offender’s household members to apply for and potential y receive benefits, but the household’s benefit amount
would likely be smaller than if the ex-offender was included.64 The amendments would require the state agency that
administers SNAP benefits to collect, in writing, information on SNAP applicants’ convictions.
The Senate-passed bill and H.Amdt. 220 are identical in their language, except that H.Amdt. 220 includes an additional
provision that would assure that the policy would affect only those with convictions after the date of the provision’s
enactment.
Housing Assistance
Drug Testing in Housing Assistance
There are no federal policies explicitly permitting or prohibiting administrators of federal housing
assistance programs from drug testing applicants or recipients. Anecdotally, it appears several
PHAs have adopted drug testing policies in their public housing programs.65 The Chicago
61 On July 11, the House passed H.R. 2642, a version of the House-reported farm bill without the Nutrition program
provisions. As such, H.R. 2642—the House-passed 2013 farm bill—does not contain proposals related to SNAP drug
testing and crime-related restrictions.
62 For further discussion of these ex-offender disqualification proposals, including crimes specified, CRS has released a
congressional memorandum. Congressional clients may request a copy from Randy Alison Aussenberg at
raussenberg@crs.loc.gov or Richard M. Thompson II at rthompson@crs.loc.gov.
63 For more information on unanimous consent agreements and amendments in the Senate, see CRS Report 98-853, The
Amending Process in the Senate, by Christopher M. Davis.
64 Similar to the current law discussion in “Applicability of Policies in SNAP,” this is because the amendment would
exclude the ex-offender from household size but include the member’s income and assets.
65 In the draft Admissions and Continued Occupancy Plan for one development owned by the Indianapolis Housing
(continued...)
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Housing Authority has a policy of drug testing all adult household members who wish to live in
certain redeveloped public housing communities.66 While this policy has been controversial, it
does not appear to have been formally challenged administratively or legally.67 Similarly, the
Indianapolis Housing Authority has a policy of drug testing families in several of its public
housing developments.68 It also does not appear to have been challenged administratively or
legally. A proposal by the Chicago Housing Authority to expand suspicionless drug testing to all
public housing residents was dropped following opposition, including a letter from the Illinois
chapter of the American Civil Liberties Union challenging the proposed policy.69
The Flint (MI) Housing Commission was reportedly considering adopting a policy of drug testing
all public housing residents in 2010.70 In response, the Michigan chapter of the American Civil
Liberties Union sent a letter to the commission urging them to reconsider adopting this policy and
indicating that its adoption may lead to expensive and protracted litigation.71
Similarly, there are no federal policies explicitly permitting or prohibiting private property
owners from drug testing potential tenants or making drug testing a requirement of a lease for
tenancy.72 This is particularly relevant for the Section 8 voucher program and the Section 8
project-based rental assistance program, which involve leases between private property owners
and families. Anecdotally, it appears some private property owners have adopted drug testing
policies.73 To date, there do not appear to have been any legal challenges to private property
owners’ policies involving drug testing of residents generally, or federally assisted renters
specifically.74
(...continued)
Authority, there is a requirement for mandatory drug testing of applicants, http://www.indyhousing.org/annualPlan/
ACOP_16%20Park-draft%2007%2019%2010.pdf.
66 Chicago Housing Authority, Tenant Selection Plan, Lake Parc Place, Selection and Screening Policy, Board
Approved, October 20, 2009, http://www.thecha.org/filebin/pdf/MixedIncome/LPP_TSP.pdf.
67 Megan Cottrell, “Should public housing residents be drug tested?” Chicago Now, September 3, 2009,
http://www.chicagonow.com/blogs/one-story-up/2009/09/should-public-housing-residents-be-drug-
tested.html#ixzz1Hcl1Sllu
68 Drug testing policies can be found in the Admissions and Continued Occupancy Plans for several of the Indianapolis
Housing Authority’s public housing developments and in the draft Admissions and Continued Occupancy Plan for at
least one development: http://www.indyhousing.org/ACOP%20-%20Georgetown.pdf, http://www.indyhousing.org/
ACOP%20-%20Red%20Maple%20Grove.pdf, http://www.indyhousing.org/annualPlan/ACOP_16%20Park-
draft%2007%2019%2010.pdf.
69 See ACLU Press Release, CHA Drops Proposal for Suspicionless Drug Testing of All Residents, June 22, 2011.
70 Ron Fonger, “Flint Housing Commission chief looks at drug tests for tenants in some public housing,” Flint Journal,
May 13, 2010, http://www.mlive.com/news/flint/index.ssf/2010/05/flint_housing_commission_chief.html.
71 See letter from Michael J. Steinberg, Legal Director, American Civil Liberties Union of Michigan, and Gregory T.
Gibbs, Law Office of Gregory T. Gibbs, to Ron Slaughter, Flint Housing Commission, Executive Director, August 12,
2010, http://www.aclumich.org/sites/default/files/file/flinthousingcommission.pdf.
72 For a discussion of legal issues involving drug testing, see Robert J. Alberts, “Drug Testing Tenants: Does it Violate
Rights of Privacy?” Journal of Real Property Probate and Trust, vol. 38, 2003-2004.
73 Ibid.
74 Based on CRS search for relevant case law. For more information on private landlord drug testing, see David Lang,
“Get Clean or Get Out: Landlords Drug-Testing Tenants,” Washington University Journal of Law and Policy, 2000, p.
459, and Alberts, 2002.
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Drug- and Other Crime-Related Restrictions in Housing Assistance Programs
The federal policies governing the treatment of drug-related and other criminal activity among
applicants for and recipients of federally assisted housing are complicated. They are governed by
several different laws, enacted at different points of time, with different levels of specificity and
discretion. For example, federal policies mandate that PHAs deny admission to the programs or
terminate assistance under the programs in some circumstances, but leave discretion to the PHAs
and private property owners who administer the programs in others. Some of the federal policies
apply only to eligibility for initial assistance or initial tenancy, some apply only to eligibility for
ongoing assistance or termination of tenancy (eviction), and some apply to both. Finally, in many
cases, the federal policies differ, sometimes significantly and sometimes slightly, across the three
programs.
In addition to federal policies, PHAs and property owners may adopt their own optional criteria to
screen applicants for suitability and set their own rules governing grounds for termination of
assistance, as discussed earlier in this report.75
Applicants
PHAs and property owners across all three programs—public housing, Section 8 voucher, and
project-based Section 8—are required under federal law to deny admission to the programs to
persons subject to lifetime registration on a sex offender registry under a state program.76
In the case of the public housing and Section 8 voucher programs, PHAs are required under
federal law to deny admission to the programs to persons convicted of producing
methamphetamines on the premises of federally assisted housing.77 This mandatory federal
prohibition does not apply to the project-based Section 8 program.
PHAs and property owners across all three housing assistance programs are required under
federal law to establish policies that deny admission to the programs to households that
include tenants
• who are determined by the administrator to be currently engaging in illegal use of
a drug;78
• whose illegal use of a drug or pattern of illegal use of a drug is determined by the
administrator, based on reasonable cause, to interfere with the health, safety, or
right to peaceful enjoyment of the premises by other residents;79
75 In the case of the public housing program and the project-based Section 8 program, since the administrator and the
landlord are the same entity, termination of assistance generally means eviction. In the case of the Section 8 voucher
program, termination of assistance does not necessarily have to mean eviction, because a tenant could potentially
negotiate with the private landlord to remain in the unit without assistance. However, in most cases it is reasonable to
assume that termination of assistance will lead to eviction.
76 42 U.S.C. §13663
77 42 U.S.C. §1437n(f)(1)
78 42 U.S.C. §13661(b)(1)
79 42 U.S.C. §13661(b)(1)
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• whose abuse of alcohol or pattern of alcohol abuse is determined by the
administrator, based on reasonable cause, to interfere with the health, safety, or
right to peaceful enjoyment of the premises by other residents;80 or
• who were evicted from federally assisted housing within the last three years for
drug-related criminal activity, unless the tenant has completed a drug
rehabilitation program or the circumstances leading to the eviction no longer
exist (i.e., the offending tenant is no longer a member of the household).81
In the last three circumstances, owners and PHAs may take into account whether or not the tenant
has completed, or is participating in, substance abuse treatment.82 Unlike the prohibitions related
to persons convicted of producing methamphetamines and persons subject to lifetime registration
on a sex-offender registry, each of the mandatory grounds for denial of admission in the bulleted
list above leave some discretion in implementation to the administering entity.
In addition to the mandatory denials of admission to the programs already described, federal law
explicitly lists other categories of criminal activity that may be grounds for denial of admission.
For all three programs, administrators may deny admission to households if a member is engaged
in or has, during a reasonable period of time83 prior to admission, been engaged in violent or
drug-related criminal activity.84
As noted earlier, in addition to these federal policies, PHAs and owners are permitted to adopt
their own discretionary screening criteria to determine whether households are suitable for
tenancy.85 For example, a PHA could adopt screening criteria that make persons convicted of
felonies ineligible for assistance. Any screening criteria adopted by a PHA or owner must be in
compliance with federal fair housing and civil rights laws, as well as state and local
nondiscrimination laws.
Recipients
The laws governing both the public housing and Section 8 voucher programs require that PHAs
terminate assistance to tenants convicted of producing methamphetamines on the premises of
federally assisted housing.86 The law does not extend this mandatory requirement to the Section 8
project-based rental assistance program. Federal law does not require PHAs to terminate
assistance to persons subject to lifetime registration on a sex offender registry; however, HUD has
issued guidance “strongly encouraging” PHAs and property owners to adopt such policies.87
80 Ibid.
81 42 U.S.C. §13661(a)
82 42 U.S.C. §13661(b)(2)
83 “Reasonable period of time” is not defined in regulation, and thus is left to be defined by PHAs and property owners.
84 42 U.S.C. §13661(c)
85 See Chapter 4 of the Public Housing Occupancy Guidebook, 42 U.S.C. §1437f(o)(6)(B), and Chapter 4 of the
Occupancy Requirements of Subsidized Multifamily Housing Programs Handbook (4350.3).
86 42 U.S.C. §1437n(f)(2)
87 See HUD Notice PIH 2009-35(HA).
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Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance
PHAs and property owners across all three programs—public housing, Section 8 vouchers, and
project-based Section 8—are required under federal law to adopt policies that allow for the
termination of assistance to households including tenants
• who are determined by the administrator to be currently engaging in illegal use of
a drug;88
• whose illegal use of a drug or pattern of illegal use of a drug is determined by the
administrator to interfere with the health, safety, or right to peaceful enjoyment of
the premises by other residents;89 or
• whose abuse of alcohol or pattern of alcohol abuse is determined by the
administrator to interfere with the health, safety, or right to peaceful enjoyment of
the premises by other residents.90
In the latter two cases, owners and PHAs may take
Restrictions on Legal Services
into account whether or not the tenant has
Corporation Assistance to Public
completed rehabilitation.91
Housing Tenants
A separate section of the governing statute
Since 1996, Legal Services Corporation (LSC)-
funded legal services agencies have been prohibited
requires that certain criminal activities serve as
from defending a public housing tenant in an eviction
cause for termination of assistance; however, these
proceeding if (1) the person has been charged with
rules vary by program.92 In the case of public
the illegal sale or distribution of a controlled
housing, any criminal activity that threatens the
substance, and (2) the eviction proceeding is
health, safety, or right to peaceful enjoyment of
brought by a public housing authority because the
illegal drug activity of the person threatens the
other tenants, or any drug-related criminal activity
health or safety of another tenant residing in the
on or off the premises, engaged in by a tenant,
public housing project or an employee of the public
member of the tenant’s household, or guest or
housing agency. For more information, see CRS
other person under the tenant’s control is cause for
Report R40679, Legal Services Corporation: Restrictions
termination of tenancy.93
on Activities, by Carmen Solomon-Fears.
In the case of the project-based Section 8 program, any criminal activity that threatens the health,
safety, or right to peaceful enjoyment of other residents in the immediate vicinity or any drug-
related criminal activity on or near the premises engaged in by a tenant, member of the tenant’s
household, or guest or other person under the tenant’s control is cause for termination
of tenancy.94
In the case of the Section 8 voucher program, any criminal activity that threatens the health,
safety, or right to peaceful enjoyment of other residents in the immediate vicinity or any drug-
related or violent criminal activity on or near the premises engaged in by a tenant, member of the
88 42 U.S.C. §13662(a)(1)
89 42 U.S.C. §13662(a)(2)
90 Ibid
91 42 U.S.C. §13661(b)(2)
92 All of these rules include special provisions designed to protect victims of domestic violence, dating violence, and
stalking.
93 42 U.S.C. §1437d(l)(6).
94 42 U.S.C. §1437f(d)(3)
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Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance
tenant’s household, or guest or other person under the tenant’s control is cause for termination of
tenancy.95
In all of these cases in which federal law requires the adoption of policies that allow for or make
cause for termination of tenancy, the law does not go so far as to require the termination of
tenancy (except in the case of production of methamphetamines on federally assisted property).
Instead, discretion is left to the program administrators as to whether and when to pursue
termination of assistance if these circumstances arise.
Fleeing Felons
As noted earlier, PRWORA restricted access to assistance for fugitive felons. As a result, fugitive
felon status is cause for termination of tenancy in the three housing assistance programs.96
However, while federal law makes fugitive felon and probation or parole violation status cause
for immediate termination of assisted housing tenancy, the statute does not actually require
termination of tenancy.97 As is the case in TANF and SNAP, current HUD regulations provide no
additional guidance on who is to be considered a fugitive felon or what is to be considered a
probation or parole violation.
Table 2. Summary of Federal Drug- and Other Crime-Related Restrictions in
Federal Housing Assistance Programs
(denial=denial of admission to applications; termination=termination of assistance and/or tenancy)
Section 8
Project-Based
Activity Public
Housing
Vouchers
Section 8
Drug-related criminal activity
Grounds for denial;
Grounds for denial;
Grounds for denial;
grounds for
grounds for
grounds for
termination
termination
termination
Violent criminal activity
Grounds for denial
Grounds for denial;
Grounds for denial
grounds for
termination
Criminal activity that interferes
Grounds for denial;
Grounds for denial;
Grounds for denial;
with health, safety, peaceful
grounds for
grounds for
grounds for
enjoyment of other residents
termination
termination
termination
Determined to be currently
Mandatory denial;
Mandatory denial;
Mandatory denial;
using illegal drugs
grounds for
grounds for
grounds for
termination
termination
termination
Abuse of drugs or alcohol that
Grounds for denial;
Grounds for denial;
Grounds for denial;
interferes with health, safety,
grounds for
grounds for
grounds for
peaceful enjoyment of other
termination
termination
termination
residents
Subject to lifetime registration
Mandatory denial
Mandatory denial
Mandatory denial
on a state sex-offender registry
95 42 U.S.C. §1437f(o)(7)(D)
96 42 U.S.C. §1437(d)(l)(9) (Public Housing); 42 U.S.C. §1437f(d)(1)(B)(v) (project-based Section 8 and Section 8
vouchers).
97 24 C.F.R. §5.859.
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Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance
Section 8
Project-Based
Activity Public
Housing
Vouchers
Section 8
Convicted of producing
Mandatory denial;
Mandatory denial;
No provision
methamphetamines on federally
mandatory
mandatory
assisted property
termination
termination
Fugitive felon
Grounds for
Grounds for
Grounds for
termination
termination
termination
Drug testing
No provision
No provision
No provision
Source: Table prepared by CRS.
Note: This table summarizes only federal policies. While there may be no federal policies in a given category,
local administrators may have adopted a policy in that category using their discretionary authority.
Applicability of Policies
Housing assistance benefits are provided to households. As a result, the background of all the
members of the household is taken into account when determining household eligibility and
screening households for suitability. Generally, if one member of the household is deemed
ineligible or unsuitable, the entire household is deemed ineligible or unsuitable, unless the
offending member is removed from the household. When it comes to ongoing assistance and
termination of tenancy, the behavior of all members of the household is considered. So, if one
member of the household engages in actions that provide grounds for termination of assistance,
then the entire household is at risk of having their assistance terminated, at the discretion of the
local administrator. Further, in the case of drug-related criminal activity, the household may be
evicted based on actions of a guest or other person under the tenant’s control, again, at the
discretion of the local administrator.
“One Strike and You’re Out” and “No-Fault” Evictions
President Clinton, in his 1996 State of the Union speech, stated “I challenge local housing
authorities and tenant associations: Criminal gang members and drug dealers are destroying the
lives of decent tenants. From now on, the rule for residents who commit crime and peddle drugs
should be one strike and you're out.” Following President Clinton’s address, HUD issued
guidance to PHAs regarding how to implement the crime and drug-related sanctions, including
eviction based on the actions of other household members and guests, that had been in the law
since the Anti-Drug Abuse Act of 1988, described earlier in this report. The “One Strike” policy
included so-called “no-fault” eviction rules, which permit PHAs to evict assisted households
because of the actions of a guest and for events that take place outside the assisted unit. These
rules proved controversial and were the subject of legal challenge.
In 2002, the Supreme Court upheld HUD’s no-fault eviction rules. The case in Department of
Housing and Urban Development v. Rucker began when the Oakland Housing Authority sought
to evict four tenants: two whose resident grandchildren were caught smoking marijuana in a
housing project parking lot, one whose daughter was found with cocaine three blocks from the
apartment, and a disabled 75-year-old man whose caretaker was found with cocaine in his
apartment. The housing authority did not claim that the elder tenants knew about, facilitated, or
condoned the drug activity. The U.S. Supreme Court held that the federal law was not ambiguous
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and that it permitted eviction of tenants for the actions of third parties regardless of their
knowledge of drug or criminal activity.98
Legal Issues Involving Drug Testing Policies:
Recent Developments99
As noted earlier in this report, several states have recently proposed or adopted new or expanded
drug testing policies for recipients of federal assistance, including TANF. Federal or state laws
that condition the initial or ongoing receipt of governmental benefits on passing drug tests
without regard to individualized suspicion of illicit drug use are vulnerable to constitutional
challenge. To date, only two state laws requiring suspicionless drug tests as a condition to
receiving governmental benefits have sparked litigation, and neither case has been fully litigated
on its merits.100 The U.S. Supreme Court has not yet rendered an opinion on such a law; however,
the Court has issued decisions on drug testing programs in other contexts that have guided the
few lower court opinions on the subject.101
Constitutional challenges to suspicionless governmental drug testing most often focus on issues
of personal privacy and Fourth Amendment protections against “unreasonable searches.” The
U.S. Supreme Court, on a number of occasions, has held that drug tests are searches under the
Fourth Amendment.102
The reasonableness of searches generally requires individualized suspicion, unless the
government can show a “special need” warranting a deviation from the norm. However,
governmental benefit programs like TANF, SNAP, unemployment compensation, and housing
assistance do not naturally evoke special needs grounded in public safety that the Supreme Court
has recognized in the past. Thus, if lawmakers wish to pursue policies requiring drug testing of
public assistance recipients, policies that only require individuals to submit to a drug test based on
an individualized suspicion of drug use are less likely to run afoul of the Fourth Amendment.
Additionally, governmental drug testing procedures that restrict the sharing of test results and that
minimize the negative repercussions of failed tests will be on firmer constitutional ground.
98 CRS Report RS21199, No-fault Eviction of Public Housing Tenants for Illegal Drug Use: A Legal Analysis of
Department of Housing and Urban Development v. Rucker.
99 This discussion is excerpted from a more complete discussion found in CRS Report R42326, Constitutional Analysis
of Suspicionless Drug Testing Requirements for the Receipt of Governmental Benefits, by David H. Carpenter.
100 Lebron v. Sec’y, Fla. Dept. of Children and Families, Docket No. 6:11-cv-01473-Orl-35DAB (11th Cir. 2013),
available at http://www.ca11.uscourts.gov/opinions/ops/201115258.pdf (affirming the district court order granting
motion for preliminary injunction). Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000); Marchwinski v.
Howard, 60 Fed. App’x 601 (6th Cir. 2003) (affirming the district court decision in accordance with Stupak-Thrall v.
United States, 89 F.3d 1269 (6th Cir. 1996), because a 12-member en banc panel of appellate judges was evenly split,
with 6 judges wanting to affirm and 6 judges wanting to reverse the district court’s opinion).
101 See, for example, Skinner v. Ry. Labor Exec. Ass’n, 489 U.S. 602 (1989); Nat’l Treasury Emp. Union v. Van Raab,
489 U.S. 656 (1989); Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995); Chandler v. Miller, 520 U.S. 305 (1997); and
Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822 (2002).
102 Ibid.
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Conclusion
As is evident in this report, there are similarities and differences in federal policies governing
drug- and crime-related restrictions in TANF, SNAP, and federal housing assistance programs.
Some may reflect the intentions underlying the policies. As noted earlier in this report, those
policy goals may include the desire to deter people from engaging in undesirable behavior, to
punish people for engaging in undesirable behavior, to direct limited resources to persons deemed
most “worthy” of assistance, or to protect vulnerable communities. They may also reflect the
similarities and differences in the programs themselves, including the goals of the programs, how
they are administered, the populations they serve, and what benefits are provided.
The following section of the report summarizes the similarities and differences between TANF,
SNAP, and the major housing assistance programs and how they may affect the drug- and crime-
related policies in those programs. The information provided in this report may raise
considerations for policymakers, which are presented at the end of this report.
Similarities and Differences
TANF, SNAP, and the major housing assistance programs are all administered either at the state
or local level, and they have left a great deal of discretion to state or local decision-makers. As a
result, the experiences of similarly situated families will differ based both on where they live and
in which assistance programs they wish to participate.
The programs also differ in terms of the way they are funded, which may affect how assistance is
provided or rationed. SNAP benefits are a 100% federally financed entitlement to eligible
individuals. As a result, when states adopt SNAP rules that are more expansive or inclusive, they
do not affect state budgets, but do affect federal spending. TANF, on the other hand, is both
federally financed and state financed. Since federal funding is limited and states are required to
pay a portion of the costs of the program, state TANF program administrators may have an
incentive to limit the number of persons who can receive benefits. Assisted housing is 100%
federally funded, but it is not an entitlement and, given limited federal resources, the program
only serves roughly one in four eligible families. This scarcity of resources leads housing
program administrators to prioritize who receives assistance, which may involve weighing who is
most in need of assistance versus who is most worthy of assistance.
In terms of populations served, SNAP and federal housing assistance programs serve a wider
population than does TANF. SNAP and housing assistance are received by households of all
types, including those made up of persons who are elderly and/or disabled, in addition to other
families with children and childless nonelderly and nondisabled adults. On the other hand, TANF
predominately serves families with children headed by an able-bodied adult of working age.
Further, TANF generally serves only the poorest of families with children, as its state-determined
income eligibility standards tend to be lower than that of SNAP and federal housing assistance
programs. Since societal concern about crime and drug use is not generally associated with
persons who are elderly or have disabilities, SNAP and housing program administrators have a
different set of considerations about how and to whom to apply crime- and drug-related policies
than do TANF administrators.
The goals and benefit structures of the programs also vary. SNAP and housing assistance are
intended to meet two of the basic needs of all families: food and shelter. SNAP provides
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Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance
assistance that can only be used for food; housing assistance provides subsidies that only can be
used for housing expenses. TANF cash assistance, on the other hand, while intended to also help
meet a family’s basic needs, is used to purchase goods and services at the discretion of the
recipient. Given these different goals and benefit structures, the potential consequences of
limiting access to SNAP and housing assistance are much more clear—hunger and
homelessness—than those of limiting access to TANF. Concern about these potential
consequences may make it more difficult for SNAP and housing assistance administrators to
broadly apply sanctions. Since the spending of TANF cash cannot be easily regulated,
policymakers and program administrators may place recipients of TANF cash assistance under
greater scrutiny to ensure that federal tax dollars are not being used for undesirable purposes,
such as illicit drug use.
In the case of the housing assistance programs, the structure of the benefit is place-based. If a
family did not receive the assistance, arguably, the family could not afford to live where it does.
As a result, assisted housing administrators may feel an added responsibility to ensure that
assisted tenants not engage in activities that could have negative spillover effects for other
residents or the surrounding neighborhood. This concern may be most evident in the public
housing program, where an assisted tenant is surrounded by other assisted tenants and the PHA,
which owns the property, is responsible for providing safe and decent housing to all tenants.
TANF and SNAP program administrators do not have these place-based considerations.
Considerations for Policymakers
In recent years, there have been calls for expansions of crime- and drug-related policy
restrictions, and conflicting calls for reforms to current policies meant to limit their impact. This
report raises several considerations that policymakers may wish to evaluate when contemplating
changes to federal crime- and drug-related restrictions.
This report highlights the variations in federal crime- and drug-related restrictions in the TANF,
SNAP, and housing assistance programs. These variations in policy exist across programs, in part,
due to the differences in the goals and design of the programs, as well as the laws that govern
them. There is also the potential for geographic variation in these policies, attributable to the
discretion that federal law leaves to local policymakers. The policy goal behind the devolution of
social programs is to allow states and localities to design their programs differently, to reflect
their interests, values, and needs. State and local variations in crime- and drug-related restrictions
are consistent with that goal. However, inconsistencies in crime- and drug-related policies may
have unintended consequences. For example, inconsistent policies may cause confusion among
potential recipients, possibly limiting their access to federal assistance for which they are eligible.
Variations may also raise questions of equity and fairness.
This report also observes that while some states are increasing their drug-related sanctions
(specifically, implementing drug testing policies), most states are opting-out of or modifying the
federal drug felon ban in TANF and SNAP. This may raise questions about the appropriateness of
current federal policy. For example, some may ask whether the federal policy intentions
underlying drug- and crime-related sanctions should override the desires of state and local
administrators.
In order to inform the federal policy debate, it may be useful to better understand state policy
choices. For instance, the drug felon ban is the default policy, which raises questions as to
whether states are actively choosing the default or passively choosing not to pursue legislation to
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Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance
opt out—a subtle but possibly significant policy difference. While some of the factors that might
influence state and local policies are identified in this report—including budget constraints, value
judgments, and other policy goals—this report does not attempt to answer the question of which
factors are actually driving state and local policy choices. There appears to be an overall absence
of evidence about the impact and effectiveness of crime- and drug-related restrictions in federal
assistance programs. In part, the challenge of this is identifying the desired objectives of crime-
related restriction policies—decreasing drug use, deterring criminal activity, reducing or
prioritizing applications—and whether the desired objectives apply to the entire population or
only certain program participants. More research in this area could be useful for policymakers.
There are several other considerations that may be of interest to policymakers, but they are
beyond the scope of this report. One such consideration may be the populations affected by
crime- and drug-related restrictions. Since the War on Drugs began, incarceration rates have risen
sharply, particularly among young black men.103 Given this, questions may be raised about
whether crime- and drug-related restrictions have disproportionate implications for racial
minorities. The Government Accountability Office (GAO) attempted to evaluate this question in a
2005 report, but found that the data needed to fully assess the question were not available.104 The
same GAO report raised a related question for policymakers regarding how current crime- and
drug-related restrictions may interact with recent federal initiatives to support prisoner reentry105
and responsible fatherhood,106 and whether these policies may be at cross purposes.107 Also, the
current sets of crime- and drug-related restrictions were established in the 1980s and 1990s, when
rates of violent crime, particularly drug-related violent crime, were much higher than they are
today. Given this shift, policymakers may wish to reevaluate current federal policies to ensure
that they appropriately address today’s concerns.
A final consideration is whether current policies related to drug testing will withstand legal
challenge as they are currently designed, or whether modifications will be necessary.108
103 For an illustration of the trend, see The Pew Charitable Trusts, Collateral Costs: Incarceration’s Effect on Economic
Mobility, Washington, DC, September 2010, Figure 3.
104 U.S. Government Accountability Office, Drug Offenders: Various Factors May Limit the Impacts of Federal Laws
that Provide for Denial of Selected Benefits, GAO-05-238, September 2005.
105 For more information, see CRS Report RL34287, Offender Reentry: Correctional Statistics, Reintegration into the
Community, and Recidivism, by Nathan James.
106 See CRS Report R41431, Child Well-Being and Noncustodial Fathers, by Carmen Solomon-Fears, Gene Falk, and
Adrienne L. Fernandes-Alcantara.
107 U.S. Government Accountability Office, Drug Offenders: Various Factors May Limit the Impacts of Federal Laws
that Provide for Denial of Selected Benefits, GAO-05-238, September 2005.
108 For more information, see CRS Report R42326, Constitutional Analysis of Suspicionless Drug Testing
Requirements for the Receipt of Governmental Benefits, by David H. Carpenter.
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Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance
Appendix. State Policies on Drug Testing in TANF
Table A-1.State Policies on Drug Testing for TANF Assistance
Applicants and Recipients (As of June 2012)
Family
State Citation Coverage
Description Implications Other
Arizona 2012
Ariz.
Requires any
Individuals who test
ALS 299
recipients “who the positive are ineligible
department has
for TANF benefits for
reasonable cause to one year.
believe engages in
the illegal use of
controlled
substances” to be
screened and
tested. Applies to
FY2012-FY2013.
Connecticut Conn.
Gen. TANF recipients
Individuals are eligible
Stat. §17b-
convicted of felony
if sentence is
112d
possession or use
completed or if
of controlled
recipient is on
substance are
probation or enrolled
covered.
in substance abuse
treatment or testing
program.
Florida Fla.
Stat. All TANF
Individuals who test
The child’s
The cost of the
§414.0652
applicants are drug
positive are ineligible
benefits are
drug test is to be
tested, including
for TANF benefits for unaffected.
borne by the
any parent or
one year. Individuals
Dependent
applicant family.
caretaker relative
who reapply after
children may
The applicant
included in the cash one year and test
receive benefits
must be
assistance group.
positive again are
through a
informed that
ineligible for three
“protective
s/he can avoid
years. Individuals who payee.” The
the drug test by
complete a substance
parent may
not applying for
abuse treatment
choose another
TANF benefits.
program may reapply
person to
Individuals who
after six months.
receive benefits
test negative for
on behalf of the
controlled
children. The
substances are
parent’s designee
reimbursed for
also must pass a
the cost of the
drug test.
test through an
increase in initial
TANF benefit.
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Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance
Family
State Citation Coverage
Description Implications Other
Georgia Ga.
ALS Requires al
Individuals
The child’s
§583
applicants to be
determined to be
benefits are
screened.
using drugs after
unaffected.
completion of a
Dependent
treatment program
children may
are ineligible for cash
receive benefits
benefits until they are
through a
determined to be
“protective
drug free.
payee.” The
parent may
choose another
person to
receive benefits
on behalf of the
children. The
parent’s designee
also must pass a
drug test.
Idaho Idaho
Code
All TANF
Participants must
If the applicant
§56-209j
applicants are
enter a substance
chooses not to
screened for
abuse treatment
comply with
IDAPA
substance abuse
program and
substance abuse
16.03.08.111 and tested if the
cooperate with
screening and
screening indicates
treatment, if
testing
the person is
screening,
requirements,
engaged in or at
assessment, or testing the children in
high risk for
shows them in need
the case can still
substance abuse.
of substance abuse
be eligible for
treatment.
assistance.
Indiana Burns
Ind.
TANF recipients
TANF recipients
Code Ann.
convicted of felony
convicted of a drug
§12-14-28-
possession or use
felony must be tested
3.3
of controlled
once every two
substance are
months.
covered.
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Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance
Family
State Citation Coverage
Description Implications Other
Louisiana La.
R.S. All adult applicants
Failure to cooperate
Eligibility of other The assessment
46:460.10
for and recipients
in screening,
family members
of a recipient
of TANF are
assessment, or drug
is not affected as
determined to be
LAC
screened for illegal
treatment results in
long as the
using illegal drugs
67:III.1249
drug use. When
case closure.
individual
will determine
indicated by the
participates in a
his/her ability to
screening or other
treatment
participate in
reasonable cause,
If the formal
program.
activities other
recipient
assessment
than
undergoes formal
determines the
rehabilitation.
assessment, which
recipient is using or is
may include urine
dependent on illegal
testing.
drugs, the most
If residential
appropriate and cost-
treatment is
effective method of
recommended
education and
and the recipient
rehabilitation will be
is unable to
determined.
arrange
temporary care
for children,
Individuals
arrangements will
determined to be
be made for the
using drugs after
care of children.
completion of a
treatment program
are ineligible for cash
benefits until they are
determined to be
drug free.
Maine 2011
Me.
TANF recipients
Individuals who test
Laws 380
who have been
positive must request
convicted of a
a fair hearing and
Sec. LL-1.
drug-related felony
submit to a second
22 MRSA
may be drug tested. drug test or TANF
Section
assistance is
3762, sub-
terminated.
Section 18
Individuals whose
second drug test is
positive may maintain
benefits by enrolling
in a substance abuse
treatment program.
Maryland Md.
Human
TANF applicants
Applicants who do
Benefits for
Services
and recipients
not comply are
other household
Code Ann.
convicted of a
denied assistance.
members are
§5-601
drug-related felony
Benefits for recipients paid to a third
are subject to
who do not comply
party.
COMAR
testing for
are reduced by the
07.03.03.09
substance abuse for individual’s
two years.
incremental portion.
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Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance
Family
State Citation Coverage
Description Implications Other
Minnesota Minn.
Stat. All applicants who
TANF benefits are
§609B.435
have been
reduced by 30% of
convicted of a drug
the MN family
Minn. Stat.
offense must
investment program
§256J.26
submit to random
standard if the drug
drug testing.
test is positive. A
second positive test
results in permanent
disqualification from
assistance.
Missouri R.S.
Mo. Requires al
Requires a urine
Other members
§208.027
applicants and
dipstick five panel
of the household
recipients to be
test. Positive test
may continue to
screened. Testing is results in an
receive TANF
required if the
administrative
benefits if
screening
hearing. Those tested
otherwise
determines
positive are referred
eligible. Benefits
“reasonable cause
to an appropriate
are paid to a
to believe” the
substance abuse
vendor or third-
applicant/recipient
treatment program.
party payee.
“engages in illegal
Individuals continue
use of control ed
to receive benefits
substances.”
while in the substance
abuse treatment
program. Those who
do not successfully
complete the
program are ineligible
for TANF benefits for
three years unless
they successfully
complete a substance
abuse treatment
program and test
negative for illegal
substances for six
months.
Montana Mont.
Code
Requires the
Anno., §53-
department to
4-212
adopt rules
concerning random
drug testing or
reporting
requirements for
convicted drug
felons.
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Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance
Family
State Citation Coverage
Description Implications Other
New Jersey
N.J. Stat.
In order to be
Eligibility is
§44:10-48
eligible, individuals
terminated if the
convicted of a drug
individual fails a drug
N.J.A.C.
related offense
test while in
10:90-18.6
must complete
treatment or for a
drug treatment
60-day period
program, and
fol owing treatment.
undergo drug
testing while in the
program and for a
60-day period after
completion.
Oklahoma 2012
OK. Requires al
Applicants with a
The child’s
ALS 263
applicants to be
confirmed positive
benefits are
screened using a
test result are
unaffected.
56 O.S.
“Substance Abuse
ineligible for benefits
Dependent
2011,
Subtle Screening
for one year.
children may
§230.52
Inventory” (SASSI)
Individuals can
receive benefits
process. If
reapply for benefits
through a
“reasonable cause”
after six months upon “protective
is determined, drug completion of a
payee.” The
tests may be
substance abuse
parent may
administered.
treatment program.
choose another
person to
receive benefits
on behalf of the
children. The
parent’s designee
also must pass a
drug test.
Pennsylvania PA
Public
All public assistance Individuals who fail
Welfare
(TANF, food
the test are provided
Code 62
stamps, general
treatment. If the
P.S. §432.24
assistance, State
individual fails a
supplemental
second test, benefits
assistance)
are suspended for 12
applicants
months. Individuals
convicted of a
who fail a third test
felony drug offense. are no longer eligible
At least 20% of
for assistance.
recipients
convicted of a
felony must
undergo random
drug testing during
each six month
period fol owing
enactment.
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Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance
Family
State Citation Coverage
Description Implications Other
South
S.C. Code
TANF recipients
Individuals who
“The
Carolina
Ann. §43-5-
who are “identified
complete a treatment
Department may
1190
as requiring alcohol program are
impose a full-
and other drug
monitored through
family sanction
S.C. Code
abuse service,” or
random drug tests.
for
Regs. 114-
convicted of an
Individuals who
noncompliance
1130
alcohol or drug
subsequently test
with the
related offense or
positive for drugs or
Individual Self-
give birth to a child
are convicted for a
Sufficiency Plan
with evidence of
control ed substance
participants who
maternal substance
violation are ineligible
complete
abuse must submit
for assistance.
treatment and fail
to random drug
to pass a random
testing and/or
test for use of
participate in a
illegal drugs.”
treatment program.
Tennessee
Tenn. ALS
Applicants will be
Applicants with a
In a two-parent
§1079
screened using a
confirmed positive
household, only
“Substance Abuse
test result are
one parent is
Subtle Screening
ineligible for benefits
required to
Inventory” (SASSI)
for one year.
undergo a drug
process to
Individuals can
test. Dependent
determine
reapply for benefits
children may
“reasonable cause
after six months upon receive benefits
that an applicant
completion of a
through a
for TANF is using a substance abuse
“protective
drug”. If
treatment program
payee.”
“reasonable cause”
and two negative
is determined, drug drug tests.
tests may be
administered.
Utah Utah
Code
Requires applicants
Applicants with
Written
drug
35A-3-304.5 to complete a
confirmed positive
screening done
written drug
test results may
during the
screening
receive benefits after
employment
questionnaire. If
completing at least 60
assessment. If a
“reasonable
days at a substance
parent tests
likelihood” is
abuse treatment
positive, the
determined, drug
program and a
employment plan
tests may be
negative drug test.
shall include an
administered.
agreement to
participate in
treatment for a
substance abuse
disorder.
Wisconsin Wis.
Stat. Wisconsin Works
Benefits for
§49.148
participants in
individuals who test
community service
positive are reduced
jobs or transitional
by 15% or less for at
Wis. Stat.
placements who
least 12 months.
§49.79
have been
After 12 months,
convicted of a drug
individuals who test
felony must submit
negative may have full
to drug testing.
benefits restored.
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Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance
Source: Congressional Research Service (CRS), based on information in the LexisNexis legal database
August 2011.
Author Contact Information
Maggie McCarty
Gene Falk
Acting Section Research Manager and Specialist in
Specialist in Social Policy
Housing
gfalk@crs.loc.gov, 7-7344
mmccarty@crs.loc.gov, 7-2163
Randy Alison Aussenberg
David H. Carpenter
Analyst in Nutrition Assistance Policy
Legislative Attorney
raussenberg@crs.loc.gov, 7-8641
dcarpenter@crs.loc.gov, 7-9118
Acknowledgments
The authors would like to thank Meredith Peterson and Abigail Rudman for their assistance with
identifying state drug testing laws.
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