Drug Testing and Crime-Related Restrictions
in TANF, SNAP, and Housing Assistance
Maggie McCarty
Specialist in Housing Policy
Gene Falk
Specialist in Social Policy
Randy Alison Aussenberg
Specialist in Nutrition Assistance Policy
David H. Carpenter
Legislative Attorney
August 28, 2015
Congressional Research Service
7-5700
www.crs.gov
R42394
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Past policies evaluating moral character based on family structure have been replaced by today’s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, some remain interested in expanding these policies.
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. The 2014 farm bill also added new restrictions for certain
ex-offenders seeking SNAP assistance. 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 have been successfully challenged
in courts. Most state policies on drug testing TANF applicants and recipients require the state to
have a “reasonable suspicion” that he or she is using illegal drugs. 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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Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance
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 ................................................................................. 7
TANF ......................................................................................................................................... 7
TANF Drug Testing............................................................................................................. 8
TANF Drug Felon Ban ........................................................................................................ 8
Fleeing Felons and Other Crime-Related Restrictions in TANF ...................................... 10
Applicability of Policies in TANF .................................................................................... 10
SNAP ...................................................................................................................................... 10
SNAP Drug Testing ............................................................................................................ 11
SNAP Drug Felon Ban ....................................................................................................... 11
“Fleeing Felon” Ban in SNAP .......................................................................................... 13
Applicability of Policies in SNAP .................................................................................... 14
Housing Assistance ................................................................................................................. 16
Drug Testing in Housing Assistance ................................................................................. 16
Drug- and Other Crime-Related Restrictions in Housing Assistance Programs ............... 17
Applicants ................................................................................................................... 18
Recipients ................................................................................................................... 19
Fleeing Felons ............................................................................................................. 20
Applicability of Policies ................................................................................................... 21
“One Strike and You’re Out” and “No-Fault” Evictions ............................................ 22
Legal Issues Involving Drug Testing Policies: Recent Developments .................................... 22
Conclusion ..................................................................................................................................... 23
Similarities and Differences .................................................................................................... 23
Considerations for Policy Makers ........................................................................................... 24
Tables
Table 1. State Policies on TANF Drug Felony Disqualification for Applicants and
Recipients ..................................................................................................................................... 9
Table 2. State Policies on the SNAP Drug Felony Disqualification for
Applicants and Reapplicants ...................................................................................................... 12
Table 3. Summary of Federal Drug- and Other Crime-Related Restrictions in Federal
Housing Assistance Programs .................................................................................................... 21
Appendixes
Appendix. State Policies on Drug Testing in TANF ...................................................................... 27
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Contacts
Author Contact Information .......................................................................................................... 35
Acknowledgments ......................................................................................................................... 35
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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 policy makers.
Evolution of Federal Policies
Since governments began providing assistance to the poor, policy makers 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
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
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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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, policy makers 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 Policy makers 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’
benefits in the definition of federal benefits.13 During debate on these user accountability
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.
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
(continued...)
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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
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
(...continued)
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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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 FY2014, cash welfare represented only 27% 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.
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 July 2013,
the maximum benefit for a family of three was $923 per month in Alaska, or 45% of poverty-
level income. New York had the highest benefits in the lower 48 contiguous states and the District
of Columbia, paying $789 per month (49% of poverty guidelines). Mississippi, the state with the
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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lowest benefit levels, paid a family of three a maximum of $170 per month, 10% 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 December 2014, TANF cash assistance
was received by 1.7 million families, which had 1.2 million recipient adults and 3.1 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 federal government has appropriated $17.3 billion for the block grant in
FY2015, and states are required to contribute at least another $10.4 billion that year.25 States
participating in the program must also meet a maintenance of effort requirement by expending a
certain amount of their own funds on TANF-related populations and programs.
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
approximately $125 per person per month for FY2014. All 50 states, the District of Columbia,
Guam, and the Virgin Islands participate in SNAP.26 In FY2013, SNAP had average monthly
participation of approximately 47.6 million individuals in 23.1 million households. 44% of
participants were under age 18; another 9% 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
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
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
(continued...)
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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 mandatory.” SNAP benefits are 100% federally
funded, and the federal government shares state administrative costs 50/50. In FY2014, SNAP
obligated approximately $75 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
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,
(...continued)
FY2015, the limits are $2,250 and $3,250, as described in this paragraph.
28 For more on categorical eligibility, see CRS Report R42054, The Supplemental Nutrition Assistance Program
(SNAP): 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 USDA-FNS, FY2016 Congressional Budget Justification, page 32-86, http://www.obpa.usda.gov/
32fns2016notes.pdf.
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
CRS Report RL32284, An Overview of the Section 8 Housing Programs: Housing Choice Vouchers and Project-Based
Rental Assistance, by Maggie McCarty.
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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 FY2015, the three housing assistance programs combined received over $35.5 billion in
discretionary appropriations.35
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.
34 As long as those criteria comply with federal, state, and local law, including Fair Housing laws.
35 See Table 2 CRS Report R43548, Department of Housing and Urban Development: FY2015 Appropriations. Total
includes the following accounts: Tenant-Based Rental Assistance, Project-Based Rental Assistance, Public Housing
Operating Fund, Public Housing Capital Fund, Choice Neighborhoods, and Family Self Sufficiency.
36 In addition to basic cash assistance, “assistance” includes both transportation aid and child care subsidies provided to
nonworking families with children.
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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 Many states have adopted policies to require such drug
tests. However, there have been two high-profile court challenges to state policies to conduct drug
tests on all applicants and recipients of TANF, whether or not there was suspicion to believe they
were using illegal drugs, as a violation of constitutional protections against unreasonable
searches.39 One was in the early post-welfare reform case in Michigan, and the other was a more
recent case in Florida. As is discussed in the “Legal Issues Involving Drug Testing Policies:
Recent Developments” section below, the TANF beneficiaries received favorable rulings in both
cases.
Table A-1 provides a listing of state policies for drug testing TANF applicants or recipients.
Information on these policies is not available from TANF state plans or in states’ TANF reports to
the federal government. Therefore, the table’s information is based on a database search of state
laws.40 The search, conducted in July 2015, identified TANF drug testing policies in 26 states.
These 26 states include Florida’s program, which was not implemented because a federal court of
appeals ruled that it was unconstitutional.41 It also includes Georgia’s program. In light of the
litigation against the similar Florida program, Georgia modified its policies so that only those
applicants and recipients for whom the state has “reasonable suspicion” are using illicit drugs will
be tested. Its law is effective January 1, 2016.
State policies (other than Florida) generally require actual testing of only certain applicants and
recipients. Some policies require testing of only those who have had past drug convictions. Other
states first “screen” for substance abuse, and then conduct the actual chemical drug test only
when that screening leads the state to have reasonable suspicion of drug use. A positive drug test
generally makes that individual ineligible for TANF assistance. However, some states allow
recipients to either retain eligibility or regain eligibility by participating in, or completing, a
substance abuse treatment program.
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.42 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.)
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 For a discussion of constitutional issues raised by drug testing policies for public benefits, see CRS Report R42326,
Constitutional Analysis of Suspicionless Drug Testing Requirements for the Receipt of Governmental Benefits, by
David H. Carpenter.
40 The search was conducted by CRS using the LexisNexis database.
41 See CRS Report R42326, Constitutional Analysis of Suspicionless Drug Testing Requirements for the Receipt of
Governmental Benefits, by David H. Carpenter.
42 Section 115 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104-193).
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Definitive information on state policies regarding the drug felon ban is not available. As with
drug testing, TANF state plans or program reports do not require that states indicate whether they
have retained the full ban, modified it, or lifted it entirely. Table 1 shows the results of a search of
the LexisNexis database (corroborated with some additional information) on state legislation to
classify state TANF policies regarding the drug felon ban. According to this search, the majority
of states have either opted-out of or modified the drug felon ban in their TANF programs. As of
July 2015, 27 states modified the lifetime ban. This includes states that shortened the ban or
allowed eligibility for some ex-offenders or established conditions for ex-offenders to be eligible
for assistance (e.g., submit to drug testing or treatment). In that month, 11 states and the District
of Columbia had opted out of the ban on drug felons entirely, and 12 states maintained the
lifetime disqualification for those convicted of drug felonies.
Table 1. State Policies on TANF Drug Felony Disqualification for Applicants and
Recipients
Information as of July 2015; 50 States and District of Columbia
Lifetime Disqualification for
No Disqualification for Drug
Drug Felons (12)
Felons (12)
Modified Disqualifications (27)
Alaska
Alabama (effective 1/30/16;
Arkansas
Arizona
currently ful ban)
California
Delaware
District of Columbia
Colorado
Georgia
New Hampshire
Connecticut
Mississippi
New Mexico
Florida
Missouri
New York
Hawaii
Nebraska
Ohio
Idaho
South Carolina
Oklahoma
Il inois
South Dakota
Oregon
Indiana
Texas
Rhode Island
Iowa
Virginia
Vermont
Kansas
West Virginia
Washington
Kentucky
Wyoming
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Montana
Nevada
New Jersey
North Carolina
North Dakota
Pennsylvania
Tennessee
Utah
Wisconsin
Source: Congressional Research Service (CRS), based on information in the LexisNexis legal database July 2015;
U.S. Government Accountability Office, Drug Offenders. Various Factors May Limit the Impacts of Federal Laws that
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Provide for Denial of Selected Benefits, GAO-05-238, September 2005; and USDA-FNS SNAP State Options
Report, September 2013.
Notes: It is difficult to ascertain whether states have maintained the ful lifetime ban on drug felons as it applies
to TANF assistance. Modifying or opting out of the drug felon ban requires an affirmative action of the state
legislature. However, maintaining the ban requires only inaction. Thus, states listed as maintaining the lifetime ban
on drug felons for TANF are those where the search on state legislature resulted in no legislation. Attempts
were made, however, to corroborate this information with other sources, including the GAO report cited
above.
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.
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 “Fleeing Felon” Ban in SNAP” 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.43 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
specifically to individuals, who individually may be barred from participation under
these policies.
SNAP
This section discusses SNAP current law with regard to drug testing, drug felony, and fleeing
felon policies, as well as the mechanisms by which these policies can affect an entire SNAP
household. New additions to this area of SNAP law were contemplated and added in the 2014
farm bill (P.L. 113-79); these additions are discussed in a text box on p. 15.
43 42 U.S.C. §602(a)(8).
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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.44 There are two exceptions to this rule; both give
states discretion45 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.46 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
2015, five states—Kansas, Maryland, Minnesota, Missouri, and Wisconsin—use drug testing as
part of their modified drug felon ban.47 (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.48 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. As of July 2015,49
the majority of states have either modified or eliminated the ban on SNAP benefits for convicted
drug felons. (See Table 2.) In addition to some states’ addition of a drug test, other state
modifications to disqualification include limiting the types of drug felonies, disqualifying those
44 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). USDA has typically cited this provision in denying states the authority to drug test SNAP applicants. In July of
this year, the Wisconsin Department of Justice announced it had filed a lawsuit against USDA over this determination.
See Wisconsin Department of Justice, “DOJ Files Lawsuit Against Federal Government Over Drug Testing
Requirements for Welfare Recipients,” press release, July 15, 2015, http://www.doj.state.wi.us/media-center/2015-
news-releases/lawsuit-over-drug-testing-requirements.
45 SNAP State Options Report, August 2012, http://www.fns.usda.gov/snap/rules/Memo/Support/State_Options/10-
State_Options.pdf .
46 7 C.F.R. §273.11(m)
47 Based on August 2015 communication with USDA-FNS.
48 7 U.S.C. §2015(i); 7 C.F.R. §273.11(k).
49 Based upon SNAP State Options Report, September 2013, http://www.fns.usda.gov/snap/rules/Memo/Support/
State_Options/11-State_Options.pdf, and communication with FNS.
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with more than one drug felony, 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).50 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.51
Table 2. State Policies on the SNAP Drug Felony Disqualification for
Applicants and Reapplicants
Information as of September 2013, except where noted
Lifetime Disqualification for
No Disqualification for Drug
Drug Felons (12)
Felons (23)
Modified Disqualification (18)
Alaska
Alabamab
Arkansasd
Arizona
Californiac
Colorado
Floridaa
Delaware
Connecticut
Georgia
District of Columbia
Hawaii
Guam
Il inois
Idaho
Indianaa
Iowa
Kansase
Mississippi
Maine
Kentucky
Nebraskaa
Massachusetts
Louisiana
South Carolina
New Hampshire
Marylande
Virginiaa
New Jersey
Michigan
Virgin Islands
New Mexico
Minnesotae
West Virginia
New York
Missourie
Ohio
Montana
Oklahoma
Nevada
Oregon
North Carolina
Pennsylvania
North Dakotad
Rhode Island
Tennessee
South Dakota
Wisconsine
Utah
Vermont
Texasb
Washington
Wyoming
Source: Table prepared by CRS based on USDA-FNS SNAP State Options Report (data from September 2013),
and July and August 2015 communication with USDA-FNS staff.
a. Between August 2012 and July 2015, this state changed from modified disqualification to lifetime
disqualification.
50 Federal Interagency Reentry Council , “Reentry Mythbuster on SNAP Benefits,” http://www.fns.usda.gov/snap/
government/pdf/SNAP_mythbusters.pdf, accessed May 2012. Note that the list of states that have eliminated the
lifetime disqualification is out of date.
51 Federal Interagency Reentry Council, pp. 2-3.
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b. In 2015, Alabama and Texas enacted state laws to repeal their lifetime bans. Alabama’s repeal wil become
effective January 2016; Texas’s wil become effective September 2015.
c. Effective April 1, 2015, California eliminated the drug felony disqualification. See state agency’s revised policy
at http://www.cdss.ca.gov/lettersnotices/entres/getinfo/acl/2014/14-100.pdf.
d. Between August 2012 and July 2015, these states changed from lifetime disqualification to modified
disqualification.
e. As of August 2015, these states include drug testing as part of their modified disqualification policy.
“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.”52 Following the 2008 law, USDA-FNS recently proposed revisions to the regulations
on fleeing felons’ treatment in SNAP.
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.53
USDA-FNS promulgated this final rule in January 2001 together with the implementation of
other PRWORA provisions;54 the agency also released guidance at the time of promulgating this
rule.55
In August 2011, USDA-FNS proposed a rule to implement the 2008 farm bill’s changes.56 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.57 As of the date of
this report, a final rule has not yet been issued.
52 Section 4120 of the 2008 farm bill (P.L. 110-246) added the following to this section of the law : “(2) The secretary
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).
53 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).
54 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.
55 http://www.fns.usda.gov/snap/rules/Memo/2001/Fleeingfelons.htm;
56 Federal Register on August 19, 2011, http://www.gpo.gov/fdsys/pkg/FR-2011-08-19/pdf/2011-21194.pdf.
57 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
(continued...)
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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).58 For these reasons, drug testing and criminal justice
disqualifications can affect even those household members that have not been disqualified. When
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 spouses, 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.59 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.60 USDA-FNS regulations, in response to comments at the time of final
promulgation,61 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.62 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).
(...continued)
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 clarifying what officially constitutes a probation
violation.
58 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 (SNAP): Categorical Eligibility, by Gene Falk and Randy Alison Aussenberg.
59 7 C.F.R. §273.11(k).
60 Income exclusions are listed in §5(d) of the Food and Nutrition Act of 2008, codified at 7 U.S.C. §2014(d).
61 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.
62 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).
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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).63 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 are treated.
SNAP: Proposed Changes to Drug Testing,
Enacted Changes to Criminal Conviction Disqualification in
2014 Farm Bill (Agricultural Act of 2014, P.L. 113-79)
After action to reauthorize the 2008 farm bil in both the 112th and 113th Congresses, the Agriculture Act of
2014 (P.L. 113-79; “2014 farm bil ”) was enacted on February 7, 2014. In addition to farm programs and
other agricultural policies, this newest omnibus farm bil reauthorizes the Supplemental Nutrition Assistance
Program (SNAP) and other related nutrition programs.64 Proposals related to SNAP drug testing and crime-
related restrictions were part of the formulation of this new farm bil ; ultimately, a new disqualification for
ex-offenders was enacted.
Drug testing changes were proposed by the House but were not enacted: The 2014 farm bil does
not give states the option to administer drug testing as part of the eligibility determination processes.65
2014 farm bill disqualifies ex-offenders with convictions for non-drug crimes, but in a narrower
way than was proposed in Senate- and House-passed bills:66
The 2014 farm bil disqualifies individuals convicted of specified federal crimes (including murder, rape, and
certain crimes against children) and state offenses determined by the Attorney General to be substantially
similar from receiving SNAP, but—unlike House and Senate proposals—only when such individuals are not
compliant with the terms of their sentence or are “fleeing felons.” The law stil allows the disqualified ex-
offender’s household members to apply for and potentially receive benefits, but the household’s benefit
amount wil likely be smaller than if the ex-offender were included.67 The law requires the state agency that
administers SNAP benefits to col ect, in writing, information on SNAP applicants’ convictions. The law also
specifies that this disqualification is not to apply to convictions that occurred before the new law’s enactment
(February 7, 2014); this specification had been included in the House bil but not the Senate bil . The exact
timing and implementation of this policy wil depend on federal rulemaking.68
The new law is expected to affect fewer people than the broader disqualifications included in both the
House and Senate conference bil s. Both Section 4020 of the Senate conference proposal and Section 4037
63 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.
64 For information on all Nutrition Title policies in the 2014 farm bill, see CRS Report R43332, SNAP and Related
Nutrition Provisions of the 2014 Farm Bill (P.L. 113-79) , by Randy Alison Aussenberg
65 A change had been proposed and incorporated into the House’s bill during floor consideration. 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 controlled substances. The amendment
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 language was also included in the House-passed SNAP bill, H.R. 3102, the Nutrition Reform and
Work Opportunity Act of 2013. Drug testing was not proposed during Senate consideration of S. 954.
66 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.
67 Similar to the current law discussion in “Applicability of Policies in SNAP,” this is because the newly enacted
provision would exclude the ex-offender from household size but include the member’s income and assets.
68 Jessica Shahin, Supplemental Nutrition Assistance Program Provisions of the Agricultural Act of 2014 -
Implementing Memorandum, USDA-FNS, March 21, 2014, http://www.fns.usda.gov/sites/default/files/
SNAP%20Provisions%20of%20the%20Agricultural%20Act%20of%202014%20-%20Implementing%20Memo.pdf.
See also Lizbeth Silbermann, Questions & Answers Concerning the Agricultural Act of 2014: Sections 4005, 4007,
4008, 4009, 4015, 4022, 4025, 4031, USDA-FNS, June 10, 2014, pp. 3-4, http://www.fns.usda.gov/sites/default/files/
SNAP%20Questions%20and%20Answers%20Concerning%20the%20Agricultural%20Act%20of%202014%20Section
s%204005%2C%204007%2C%204008%2C%204009%2C%204015%2C%204022%2C%204025%2C%204031.pdf.
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of the House proposal would have barred from receiving benefits individuals solely convicted of those same
crimes listed in the final law (specified federal crimes, including murder, rape, and certain crimes against
children, and state offenses determined by the Attorney General to be substantially similar).69
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, or considered adopting, drug testing policies in their public housing
programs.70
The Norwalk Housing Authority in Connecticut has a policy of suspicionless drug testing for all
applicants for public housing.71 The ACLU of Connecticut has contended that the policy is
unconstitutional, and has stated it is seeking a client on whose behalf they can file a constitutional
challenge.72 A proposal by the Chicago Housing Authority to apply 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 opposing the proposed policy.73 Similarly, the Flint
(MI) Housing Commission was reportedly considering adopting a policy of drug testing all public
housing residents in 2010.74 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.75 It does not appear
that a drug testing policy has been adopted by the Flint Housing Authority.
In the case of mixed-income public housing, where the properties are often managed by private
entities in partnership with local PHAs, suspicionless drug testing also appears to take place.
Several of the Chicago Housing Authorities’ redeveloped mixed-income public housing
communities have suspicionless drug testing policies in place.76 These policies have also proved
69 In addition to their cost estimate of the Senate-reported bill, CBO composed an official cost estimate for the Senate
floor amendment that added the ex-offender provision to the bill before it passed the Senate. See CBO website,
http://cbo.gov/publication/44905. They estimate that the provision would reduce spending by as little as $21 million or
as much as $185 million over 10 years (FY2014-FY2023), depending on whether the provision is interpreted to apply
to convictions that occurred before the change to SNAP eligibility law.
70 In the draft Admissions and Continued Occupancy Plan for one development owned by the Indianapolis Housing
Authority, there is a requirement for mandatory drug testing of applicants, http://www.indyhousing.org/annualPlan/
ACOP_16%20Park-draft%2007%2019%2010.pdf.
71 See Norwalk Housing Authority’s Admissions and Continued Occupancy Plan, available at
http://www.norwalkha.org/uploads/files/163.pdf#page=37, accessed July 7, 2015.
72 See ACLU of Connecticut website for more information: https://www.acluct.org/weeklynews/government-drug-
testing/, accessed on July 7, 2015.
73 See ACLU Press Release, CHA Drops Proposal for Suspicionless Drug Testing of All Residents, June 22, 2011
74 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.
75 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.
76 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.
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controversial and the American Civil Liberties Union (ACLU) of Illinois has filed a class action
lawsuit challenging them in Chicago.77
There are no federal laws explicitly prohibiting private property owners from drug testing
potential tenants or making drug testing a requirement of a lease for tenancy.78 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.79
Fourth Amendment protections, as discussed in “Legal Issues Involving Drug Testing Policies:
Recent Developments” in the next section of this report, do not extend to purely private action.80
However, Fourth Amendment protections might be triggered if there is sufficient governmental
involvement in a private landlord’s drug testing program. Certain state laws also might provide
individuals protections from drug testing that go beyond those afforded under the Fourth
Amendment, which could further constrain the ability of a landlord to test tenants for illicit drug
use. Additionally, it is possible that a private landlord’s drug testing program could be
implemented so as to discriminate against a protected class in violation of a state or federal
antidiscrimination law, such as the federal Fair Housing Act (42 U.S.C. §3601, et seq.).81
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.82 In 2011 and 2012, then-HUD Secretary Shaun
77 See ACLU of Illinois website for information on Peery v. CHA, http://www.aclu-il.org/peery-v-cha22/, accessed on
July 7, 2015.
78 For a discussion of legal issues involving drug testing in housing, see Robert J. Aalberts, “Drug Testing Tenants:
Does it Violate Rights of Privacy?” Journal of Real Property Probate and Trust, vol. 38, 2003-2004.
79 Ibid.
80 See, for example, United States v. Jacobsen, 466 U.S. 109, 113-14 (1984) (“This Court has also consistently
construed this protection as proscribing only governmental action; it is wholly inapplicable to a search or seizure, even
an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation
or knowledge of any governmental official.”) (internal citations and quotations omitted) and Chandler v. Miller, 520
U.S. 305, 323 (1997) (“And we do not speak to drug testing in the private sector, a domain unguarded by Fourth
Amendment constraints.”).
81 For more information on private landlord drug testing, see David Lang, “Get Clean or Get Out: Landlords Drug-
Testing Tenants,” 2 Wash. U. J. L. & Pol’y 459, (2000), and Alberts, 2002.
82 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
(continued...)
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Donovan sent a letter to PHAs and a letter to property owners reminding them of the discretion
they have to consider individuals’ circumstances and take them into account when making
admissions and termination decisions and encouraging them to allow ex-offenders to rejoin their
families, when appropriate.83
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.84
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.85 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;86
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;87
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;88 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).89
(...continued)
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.
83 See Letter from Shaun Donovan, Secretary of HUD, and Sandra B. Henriquez, Assistant Secretary of Public and
Indian Housing, to PHA Executive Director, June 17, 2011, http://usich.gov/resources/uploads/asset_library/
Rentry_letter_from_Donovan_to_PHAs_6-17-11.pdf and Letter from Shaun Donovan, Secretary of HUD, and Carol J.
Galante, Acting Assistant Secretary for Housing-Federal Housign Commissioner, to Owners and Agents, March 14,
2012, http://nhlp.org/files/HUD%20Letter%203.14.12.pdf.
84 42 U.S.C. §13663
85 42 U.S.C. §1437n(f)(1)
86 42 U.S.C. §13661(b)(1)
87 42 U.S.C. §13661(b)(1)
88 Ibid.
89 42 U.S.C. §13661(a)
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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.90 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 time91 prior to admission, been engaged in violent or
drug-related criminal activity.92
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.93 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.94 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.95
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;96
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;97 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.98
90 42 U.S.C. §13661(b)(2)
91 “Reasonable period of time” is not defined in regulation, and thus is left to be defined by PHAs and property owners.
92 42 U.S.C. §13661(c)
93 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).
94 42 U.S.C. §1437n(f)(2)
95 See HUD Notice PIH 2009-35(HA).
96 42 U.S.C. §13662(a)(1)
97 42 U.S.C. §13662(a)(2)
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In the latter two cases, owners and PHAs may take into account whether or not the tenant has
completed rehabilitation.99
A separate section of the governing statute
requires that certain criminal activities serve as
Restrictions on Legal Services
cause for termination of assistance; however, these
Corporation Assistance to Public
rules vary by program.100 In the case of public
Housing Tenants
housing, any criminal activity that threatens the
Since 1996, Legal Services Corporation (LSC)-
health, safety, or right to peaceful enjoyment of
funded legal services agencies have been prohibited
from defending a public housing tenant in an eviction
other tenants, or any drug-related criminal activity
proceeding if (1) the person has been charged with
on or off the premises, engaged in by a tenant,
the il egal sale or distribution of a control ed
member of the tenant’s household, or guest or
substance, and (2) the eviction proceeding is
other person under the tenant’s control is cause for
brought by a public housing authority because the
il egal drug activity of the person threatens the
termination of tenancy.101
health or safety of another tenant residing in the
In the case of the project
public housing project or an employee of the public
-based Section 8
housing agency. For more information, see CRS
program, any criminal activity that threatens the
Report R40679, Legal Services Corporation: Restrictions
health, safety, or right to peaceful enjoyment of
on Activities, by Carmen Solomon-Fears.
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.102
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
tenant’s household, or guest or other person under the tenant’s control is cause for termination of
tenancy.103
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.104
However, while federal law makes fugitive felon and probation or parole violation status cause
(...continued)
98 Ibid
99 42 U.S.C. §13661(b)(2)
100 All of these rules include special provisions designed to protect victims of domestic violence, dating violence, and
stalking.
101 42 U.S.C. §1437d(l)(6).
102 42 U.S.C. §1437f(d)(3)
103 42 U.S.C. §1437f(o)(7)(D)
104 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).
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for immediate termination of assisted housing tenancy, the statute does not actually require
termination of tenancy.105 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 3. 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 with
Grounds for denial;
Grounds for denial;
Grounds for denial;
health, safety, peaceful enjoyment of
grounds for
grounds for
grounds for
other residents
termination
termination
termination
Determined to be currently using
Mandatory denial;
Mandatory denial;
Mandatory denial;
il egal 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, peaceful grounds for
grounds for
grounds for
enjoyment of other residents
termination
termination
termination
Subject to lifetime registration on a
Mandatory denial
Mandatory denial
Mandatory denial
state sex-offender registry
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,
105 24 C.F.R. §5.859.
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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
and that it permitted eviction of tenants for the actions of third parties regardless of their
knowledge of drug or criminal activity.106
Legal Issues Involving Drug Testing Policies:
Recent Developments107
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, two state laws requiring suspicionless drug tests as a condition to receiving
TANF benefits have sparked litigation and both cases resulted in favorable rulings for the plaintiff
TANF beneficiaries.108 The U.S. Supreme Court has not yet rendered an opinion on such a law;
106 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.
107 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.
108 Lebron v. Sec’y, Fla. Dept. of Children and Families, 772 F.3d 1352 (11th Cir. 2014) (affirming district court ruling
that Florida’s drug testing law violated the Fourth Amendment of the U.S. Constitution).Marchwinski v. Howard, 113
F. Supp. 2d 1134 (E.D. Mich. 2000) (granting the plaintiffs’ motion for a preliminary injunction, concluding that the
“Plaintiffs have established a strong likelihood of succeeding on the merits of their Fourth Amendment claim.”);
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).
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however, the Court has issued decisions on drug testing programs in other contexts that have
guided the few lower court opinions on the subject.109
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.110
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.
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 policy makers, 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
109 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).
110 Ibid.
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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 those 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
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, policy
makers 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 Policy Makers
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 policy makers 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
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them. There is also the potential for geographic variation in these policies, attributable to the
discretion that federal law leaves to local policy makers. 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
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 policy makers.
There are several other considerations that may be of interest to policy makers, 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.111 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.112 The
same GAO report raised a related question for policy makers regarding how current crime- and
drug-related restrictions may interact with recent federal initiatives to support prisoner reentry113
and responsible fatherhood,114 and whether these policies may be at cross purposes.115 Also, the
current sets of crime- and drug-related restrictions were established in the 1980s and 1990s, when
111 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.
112 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.
113 For more information, see CRS Report RL34287, Offender Reentry: Correctional Statistics, Reintegration into the
Community, and Recidivism, by Nathan James.
114 See CRS Report R41431, Child Well-Being and Noncustodial Fathers, by Carmen Solomon-Fears, Gene Falk, and
Adrienne L. Fernandes-Alcantara.
115 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.
Congressional Research Service
25
Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance
rates of violent crime, particularly drug-related violent crime, were much higher than they are
today. Given this shift, policy makers 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.116
116 For more information, see CRS Report R42326, Constitutional Analysis of Suspicionless Drug Testing
Requirements for the Receipt of Governmental Benefits, by David H. Carpenter.
Congressional Research Service
26
Appendix. State Policies on Drug Testing in TANF
Table A-1. State Policies on Drug Testing for TANF Assistance Applicants and Recipients (As of July 2015)
State
Citation
Coverage
Description
Family Implications
Other
Alabama
2014 Al. Pub Act
Requires applicants and
A positive screening results in a
If parents lose benefits, the
438
certain recipients upon
warning that benefits may be lost. child(ren) may stil receive
reasonable suspicion of il egal
Subsequent positive screenings
benefits through a third
substance abuse to undergo
wil result in a loss of benefits.
party.
screening to detect the
presence of drugs. Effective
Oct. 1, 2015.
Arizona
2014 Ariz. Sess.
Requires any recipients “who
Individuals who test positive are
Laws 11
the department has
ineligible for TANF benefits for
reasonable cause to believe
one year.
engages in the il egal use of
control ed substances” to be
screened and tested. Applies
to FY2012-FY2013.
Arkansas
2015 Ark. Acts
All applicants and recipients
Individuals who refuse to take a
1205 (SB 600)
are screened, and if there is a
test or test positive are ineligible
reasonable suspicion of drug
for six months. However, a
use they are required to take
person testing positive may retain
a drug test. Effective Dec. 31,
benefits if they comply with a
2015, and expires after two
treatment plan.
years unless extended
(considered a two-year pilot).
CRS-27
State
Citation
Coverage
Description
Family Implications
Other
Colorado
2008 Colo. Ch. 396
At the election of a county, if
the use of a control ed
substance prevents the
participant from successful y
engaging in a work activity,
the participant may be
required to engage in a
substance abuse control
program. The program may
require drug testing.
Connecticut
Conn. Gen. Stat.
TANF recipients convicted of
Individuals are eligible if sentence
§17b-112d
felony possession or use of
is completed or if recipient is on
control ed substance are
probation or enrol ed in
covered.
substance abuse treatment or
testing program.
Florida
Fla. Stat. §414.0652
All TANF applicants are drug
Individuals who test positive are
The child’s benefits are
The cost of the drug test is
tested, including any parent or ineligible for TANF benefits for
unaffected. Dependent
to be borne by the
caretaker relative included in
one year. Individuals who reapply
children may receive
applicant family. The
the cash assistance group.
after one year and test positive
benefits through a
applicant must be informed
NOTE: Law is not being
again are ineligible for three
“protective payee.” The
that s/he can avoid the
implemented because it was
years. Individuals who complete a parent may choose
drug test by not applying
found to violate constitutional
substance abuse treatment
another person to receive
for TANF benefits.
protections against unlawful
program may reapply after six
benefits on behalf of the
Individuals who test
searches and seizures.
months.
children. The parent’s
negative for control ed
designee also must pass a
substances are reimbursed
drug test.
for the cost of the test
through an increase in
initial TANF benefit.
CRS-28
State
Citation
Coverage
Description
Family Implications
Other
Georgia
2014 Ga. Laws 664
Applicants or recipients if
The first positive test results in
The child’s benefits are
there is “reasonable
loss of benefits for at least one
unaffected. Dependent
suspicion” of drug use.
month, or longer until he or she
children may receive
tests negative. A second positive
benefits through a
test results in loss of benefits for
“protective payee.” The
at least three months, or longer
parent may choose
until he or she tests negative. A
another person to receive
third positive test results in loss
benefits on behalf of the
of benefits for one year, or
children. The parent’s
longer until he or she tests
designee also may be
negative.
required to take a drug
test.
Idaho
Idaho Code §56-
All TANF applicants are
Participants must enter a
If the applicant chooses
209j
screened for substance abuse
substance abuse treatment
not to comply with
IDAPA
and tested if the screening
program and cooperate with
substance abuse screening
16.03.08.111
indicates the person is
treatment, if screening,
and testing requirements,
engaged in or at high risk for
assessment, or testing shows
the children in the case can
substance abuse.
them in need of substance abuse
stil be eligible for
treatment.
assistance.
Indiana
Burns Ind. Code
TANF recipients convicted of
TANF recipients convicted of a
Ann. §12-14-28-3.3
felony possession or use of
drug felony must be tested once
control ed substance are
every two months.
covered.
CRS-29
State
Citation
Coverage
Description
Family Implications
Other
Louisiana
La. R.S. 46:460.10
All adult applicants for and
Failure to cooperate in screening, Eligibility of other family
The assessment of a
LAC 67:III.1249
recipients of TANF are
assessment, or drug treatment
members is not affected as
recipient determined to be
screened for il egal drug use.
results in case closure.
long as the individual
using il egal drugs wil
When indicated by the
participates in a treatment
determine his/her ability to
screening or other reasonable
program.
participate in activities
cause, recipient undergoes
If the formal assessment
other than rehabilitation.
formal assessment, which may
determines the recipient is using
include urine testing.
or is dependent on il egal drugs,
the most appropriate and cost-
If residential treatment is
effective method of education
recommended and the
and rehabilitation wil be
recipient is unable to
determined.
arrange temporary care for
children, arrangements wil
be made for the care of
Individuals determined to be
children.
using drugs after completion of a
treatment program are ineligible
for cash benefits until they are
determined to be drug free.
Maine
2011 Me. Laws 380
TANF recipients who have
Individuals who test positive must
been convicted of a drug-
request a fair hearing and submit
Sec. LL-1. 22 MRSA
related felony may be drug
to a second drug test or TANF
Section 3762, sub-
tested.
assistance is terminated.
Section 18
Individuals whose second drug
test is positive may maintain
benefits by enrol ing in a
substance abuse treatment
program.
Maryland
Md. Human
TANF applicants and
Applicants who do not comply
Benefits for other
Services Code Ann.
recipients convicted of a drug-
are denied assistance. Benefits for household members are
§5-601
related felony are subject to
recipients who do not comply
paid to a third party.
COMAR
testing for substance abuse
are reduced by the individual’s
07.03.03.09
for two years.
incremental portion.
CRS-30
State
Citation
Coverage
Description
Family Implications
Other
Michigan
2014 Mi. P.A. 394
A suspicion-based drug
An applicant or recipient who
screening and testing program
refuses to take or fails a drug test
for applicants and recipients.
is ineligible for benefits for at
Pilot program in at least three
least six months.
counties, subject to funding.
Minnesota
Minn. Stat.
All applicants who have been
TANF benefits are reduced by
§609B.435
convicted of a drug offense
30% of the MN family investment
Minn. Stat. §256J.26
must submit to random drug
program standard if the drug test
testing.
is positive. A second positive test
results in permanent
disqualification from assistance.
Mississippi
2014 Miss. General
All applicants are required to
If the applicant tests positive, the
Laws 430
complete a questionnaire to
person may remain eligible for
determine the likelihood of a
benefits if they comply with an
substance abuse problem. If
approved substance abuse
there is likelihood that there
treatment program. Failure to
is such a problem, the
comply with such a program or
applicant must submit to a
testing positive after completing a
drug test.
program results in loss of
benefits.
Missouri
R.S. Mo. §208.027
Requires all applicants and
Requires a urine dipstick five
Other members of the
recipients to be screened.
panel test. Positive test results in
household may continue to
Testing is required if the
an administrative hearing. Those
receive TANF benefits if
screening determines
tested positive are referred to an
otherwise eligible. Benefits
“reasonable cause to believe”
appropriate substance abuse
are paid to a vendor or
the applicant/recipient
treatment program. Individuals
third-party payee.
“engages in il egal use of
continue to receive benefits
control ed substances.”
while in the substance abuse
treatment program. Those who
do not successful y complete the
program are ineligible for TANF
benefits for three years unless
they successful y complete a
substance abuse treatment
program and test negative for
il egal substances for six months.
CRS-31
State
Citation
Coverage
Description
Family Implications
Other
Montana
Mont. Code Anno.,
Requires the department to
§53-4-212
adopt rules concerning
random drug testing or
reporting requirements for
convicted drug felons.
New Jersey
N.J. Stat. §44:10-48
In order to be eligible,
Eligibility is terminated if the
N.J.A.C. 10:90-18.6 individuals convicted of a
individual fails a drug test while in
drug-related offense must
treatment or for a 60-day period
complete drug treatment
fol owing treatment.
program, and undergo drug
testing while in the program
and for a 60-day period after
completion.
New York
1997 NY Laws 436
When the screening process
indicates that there is reason
to believe an applicant or
recipient is abusing drugs or
alcohol, a formal substance
abuse assessment is required
that may include drug testing.
North Carolina
2013 N.C. Sess.
Requires drug tests for all
Those who refuse or fail drug
Laws 417
applicants and recipients who
tests may re-establish eligibility
are “reasonably” suspect of
after 30 days if they document
using il egal control ed
successful completion of a
substances.
substance abuse treatment
program. Otherwise those who
refuse or fail drug tests are
ineligible for one year (or if
second or subsequent failure,
three years).
CRS-32
State
Citation
Coverage
Description
Family Implications
Other
Oklahoma
2012 OK. Laws
Requires all applicants to be
Applicants with a confirmed
The child’s benefits are
263;
screened using a “Substance
positive test result are ineligible
unaffected. Dependent
56 O.S. 2011,
Abuse Subtle Screening
for benefits for one year.
children may receive
§230.52
Inventory” (SASSI) process. If
Individuals can reapply for
benefits through a
“reasonable cause” is
benefits after six months upon
“protective payee.” The
determined, drug tests may be completion of a substance abuse
parent may choose
administered.
treatment program.
another person to receive
benefits on behalf of the
children. The parent’s
designee also must pass a
drug test.
Pennsylvania
PA Public Welfare
All public assistance (TANF,
Individuals who fail the test are
Code 62 P.S.
food stamps, general
provided treatment. If the
§432.24
assistance, State supplemental
individual fails a second test,
assistance) applicants
benefits are suspended for 12
convicted of a felony drug
months. Individuals who fail a
offense. At least 20% of
third test are no longer eligible
recipients convicted of a
for assistance.
felony must undergo random
drug testing during each six
month period fol owing
enactment.
South Carolina
S.C. Code Ann.
TANF recipients who are
Individuals who complete a
“The Department may
§43-5-1190
“identified as requiring alcohol treatment program are
impose a ful -family
S.C. Code Regs.
and other drug abuse
monitored through random drug
sanction for
114-1130
service,” or convicted of an
tests. Individuals who
noncompliance with the
alcohol- or drug-related
subsequently test positive for
Individual Self-Sufficiency
offense or give birth to a child
drugs or are convicted for a
Plan participants who
with evidence of maternal
control ed substance violation
complete treatment and
substance abuse must submit
are ineligible for assistance.
fail to pass a random test
to random drug testing and/or
for use of il egal drugs.”
participate in a treatment
program.
CRS-33
State
Citation
Coverage
Description
Family Implications
Other
Tennessee
Tenn. ALS §1079
Applicants wil be screened
Applicants with a confirmed
In a two-parent household,
using a “Substance Abuse
positive test result are ineligible
only one parent is required
Subtle Screening Inventory”
for benefits for one year.
to undergo a drug test.
(SASSI) process to determine
Individuals can reapply for
Dependent children may
“reasonable cause that an
benefits after six months upon
receive benefits through a
applicant for TANF is using a
completion of a substance abuse
“protective payee.”
drug.” If “reasonable cause” is
treatment program and two
determined, drug tests may be negative drug tests.
administered.
Utah
Utah Code 35A-3-
Requires applicants to
Applicants with confirmed
Written drug screening
304.5
complete a written drug
positive test results may receive
done during the
screening questionnaire. If
benefits after completing at least
employment assessment. If
“reasonable likelihood” is
60 days at a substance abuse
a parent tests positive, the
determined, drug tests may be treatment program and a
employment plan shall
administered.
negative drug test.
include an agreement to
participate in treatment for
a substance abuse
disorder.
Wisconsin
Wis. Stat. §49.148
Wisconsin Works participants Benefits for individuals who test
in community service jobs or
positive are reduced by 15% or
transitional placements who
less for at least 12 months. After
Wis. Stat. §49.79
have been convicted of a drug
12 months, individuals who test
felony must submit to drug
negative may have ful benefits
testing.
restored.
Source: Congressional Research Service (CRS), based on information in the LexisNexis legal database July 2015.
CRS-34
Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance
Author Contact Information
Maggie McCarty
Randy Alison Aussenberg
Specialist in Housing Policy
Specialist in Nutrition Assistance Policy
mmccarty@crs.loc.gov, 7-2163
raussenberg@crs.loc.gov, 7-8641
Gene Falk
David H. Carpenter
Specialist in Social Policy
Legislative Attorney
gfalk@crs.loc.gov, 7-7344
dcarpenter@crs.loc.gov, 7-9118
Acknowledgments
The authors would like to thank Meredith Sund, Abigail Overbay, and Dana Deseck-Piazzon for their
assistance with identifying state drug testing laws.
Congressional Research Service
35