Pubdate: Fri, 20 Dec 2013
Source: Topeka Capital-Journal (KS)
Copyright: 2013 The Topeka Capital-Journal
Contact:  http://cjonline.com/
Details: http://www.mapinc.org/media/455
Author: Andy Marso

LEGISLATOR DRUG TESTING INCLUDES NO PENALTIES FOR FAILURE

Welfare Recipients Subject to Loss of Benefits for Failed Test; JoCo 
Rep Says Legislators Should Lose Pay

Legislative leaders picked someone to administer their new 
drug-testing program this week, but it appears the names of lawmakers 
who fail won't be made public, and they will face no penalty.

The Legislative Coordinating Council unanimously chose Jeff Russell, 
director of Legislative Administrative Services, to run the testing 
program that was attached as an amendment to a bill requiring testing 
for some recipients of cash assistance.

While the law states that low-income Kansans who fail their tests 
will have their benefits frozen unless they complete a treatment 
program, Russell said Senate Bill 149 provides no authority for him 
or anyone else to penalize legislators who fail.

"None whatsoever," Russell said.

Russell also said he doesn't believe he can disclose the names of 
legislators who fail the tests because of privacy laws that govern 
medical records. He said he will consult with Department of 
Administration attorneys to determine what reasonable suspicion of 
drug use will spur legislator tests.

The lack of penalties infuriated Rep. Stephanie Clayton, R-Overland Park.

"The only reason I voted for that bill is because I knew legislators 
would be tested," Clayton said. "I just assumed that if we were 
subject to testing, we were subject to the same treatment as the 
individuals we imposed this on. Obviously we're not."

Clayton, a freshman, acknowledged that she should have read the bill 
more closely. She said she is "horrified, and I want to fix it." 
While there are constitutional restrictions on when a legislator can 
be removed from office, Clayton said there are other things 
legislators can do to hold each other accountable.

"To me it seems worthwhile to pursue instituting a statutory change 
that would allow for a legislator who tests positive to lose our 
legislative pay and have to go to rehab just like the benefit 
recipients," Clayton said.

Shannon Cotsoradis, president and CEO of Kansas Action for Children, agreed.

"Experience in other states demonstrates that drug testing isn't a 
good use of taxpayer dollars and isn't good for children," Cotsoradis 
said. "But if, as a state, we're moving forward with drug testing, we 
should hold legislators to the highest standard."

Drug testing for welfare recipients has been a popular conservative 
initiative nationwide despite a lack of hard data showing drug use is 
more prevalent among such recipients than the general public.

A Florida program that required blanket testing cost the state more 
than it would have paid in benefits because so few failed the test 
and those who passed were reimbursed for the cost of testing. That 
program also became mired in litigation led by the American Civil 
Liberties Union, which argued that the testing violated privacy 
rights guaranteed by the Fourth Amendment. Officials in Utah said 
their more limited program saved money by dissuading drug users from 
applying for aid.

The Kansas program, spearheaded by Rep. Kasha Kelley, R-Arkansas 
City, and Sen. Jeff King, R-Independence, was devised to be more like 
Utah's than Florida's, testing only those who were flagged based on 
their responses to a written assessment. King, a lawyer, said this 
met the standard for reasonable suspicion to make the bill comply 
with the Fourth Amendment.

Still, Kansas Attorney General Derek Schmidt requested a $250,000 
budget boost last year to defend the bill, anticipating a court challenge.

The Kansas bill also bars anyone convicted of a drug-related felony 
from receiving cash aid for five years and extends that to a lifetime 
ban for a second conviction. It also requires drug screening for 
recipients of unemployment insurance.

The bill passed over the objections of some Democrats who said it 
unfairly smeared the poor and unemployed.

Senate Minority Leader Anthony Hensley, D-Topeka, offered several 
amendments, including one that required drug testing for leaders of 
corporations that receive state incentives and another to require 
testing for legislators based on reasonable suspicion.

The amendment pertaining to corporate executives failed. The one 
pertaining to legislators stuck, but with no penalties for flunking 
tests. Hensley said he had offered a previous amendment for testing 
all legislators with penalties that mirrored those for aid 
recipients, but it failed 17-21.

"My original intent with the first amendment was that we should 
include penalties," Hensley said.

Hensley said he agrees with Clayton that legislators should go back 
in 2014 and "put some teeth in this law" - specifically, a provision 
for loss of legislator compensation.

The testing for Temporary Assistance for Needy Families recipients 
will be administered by the Department of Children and Families 
starting July 1, 2014. Results will be confidential, except for the 
purposes of department hearings.

A supplemental note estimates the bill will result in about $1 
million in increased DCF spending.
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MAP posted-by: Jay Bergstrom