3.20.1 Drug Felons

7 CFRCode of Federal Regulations 273.11(m)

For FS eligibility purposes, a drug felon is a person ( adult or a minorSomeone less than 18 years old who is under the parental control of an adult food unit member ) who is convicted of a felony in a state or federal court involving the possession, use or distribution of a controlled substance within the last 5 years. Convicted drug felons must have a negative drug test result (pass) to become eligible for FS. The drug test should include the drug for which the applicant or member received the felony conviction. Drug felons that test positive (fail) for controlled substances will be sanctioned.

The cost of drug testing must be paid for by the local agency and the drug test must be state certified. If the drug felon passes the drug test, do not test again at each review. The local agency may use the results of a drug test conducted by another state certified entity if the test was taken within the last 30 days. Examples of other state certified entities include, but are not limited to, probation officers, employers, FEPs, etc. If a previous drug test result is offered but is older than 30 days, require a new drug test.

A FoodShare applicant or recipient must state in writing whether s/he or any member of his/her household has been convicted in any state or federal court of a felony for possession, use, or distribution of a controlled substance. The customer's signature on the Application Summary is sufficient to satisfy this requirement.

3.20.1.1 Applications

Applicants who meet the definition of a drug felon and agree to take a drug test will be tentatively approved until a drug test is taken. If the individual passes this test, s/he remains eligible. If the applicant refuses to take a drug test, s/he will remain ineligible for FS until s/he agrees to take a drug test.

If the drug test result is positive, the individual is ineligible for 12 months from the next possible payment month. If the drug test result is negative, the individual remains eligible. Do not retest the individual at review.

In the pre-drug test information gathering process, the FS applicant or member should identify any prescription or non-prescription drugs they are taking that may cause a positive test. However, if the applicant/member tests positive for a drug legally prescribed, s/he should not be sanctioned if s/he provides a statement from a physician or pharmacy explaining the positive test, within 30 days from date of a positive test. For example, taking a legally prescribed opiate derivative could potentially cause a positive test but should not result in a sanction if the applicant or member verifies a valid prescription for this medication.

If the physician/pharmacist statement is not received by the agency within 30 days from testing positive, the applicant will be sanctioned for a year. For information on regaining eligibility, see Chapter 3.20.1.3.

Applicants who miss a scheduled drug test should be sanctioned immediately. If the applicant later agrees to take a test within the application period, another drug test can be scheduled. If s/he takes and passes this test, the sanction should be removed and any benefits missed should be issued. If the applicant misses a drug test and requests another test after the initial application period, the test should be scheduled. If s/he passes this test, approve benefits for the next possible payment month.

For a one person food unit, a missed drug test appointment would result in a denial or termination of the FS case. A new application (2.1.1) would be required if the individual wanted a new opportunity to take a drug test.

Example 1: Jane is applying for FS for herself and her two children on June 19. She admits she is a convicted drug felon and agrees to take a drug test. The worker schedules the drug test for June 25th. No other verification is needed by June 21, so the worker processes the application and Jane is found eligible for June, July, and August FS benefits. Results from the drug test are received by the worker on July 2nd. Jane failed the drug test. Jane will be sanctioned effective August 1 for 12 months. Her two children remain eligible for FS.

3.20.1.2 Ongoing cases

If a felony drug conviction is reported for an eligible FS member at review or any other time, immediately schedule the individual for a drug test. Refusal to take a drug test will result in the felon being removed from the FS assistance group until the individual agrees to take the test. If a felon tests positive on a drug test, deny FS for the individual for 12 months starting in the next possible benefit month.

Example 2: Bob is receiving FS with his girlfriend and her daughter. He was convicted of a drug felony on June 29 and reported this at his July review on July 12th. He was placed on probation as a result of his conviction. He refuses to take a drug test. Bob will be sanctioned until he agrees to take a drug test. If he had agreed to take the test and failed, he would be sanctioned in the next possible benefit month for 12 months.

3.20.1.3 Regaining Eligibility

To regain eligibility after 12 months the drug felon must reapply and submit to another drug test. If the individual does not submit to a test, continue to deny the individual until a test is agreed to. If the person agrees to take a test, continue to deny the individual until the results are received.

If the second drug test is negative, the person may be eligible for the FS Program as of the first of the month following the month in which the individual agreed to take the test. If the second test results are positive, the person is ineligible for the FS program for an additional 12 months. As with other sanctions that end, the individual must re-request FS. The individual will not automatically be eligible when the sanction period ends.

If the ineligible drug felon is still in the home, deemDeem means allocate income, assets, and/or expenses to the food group from an individual not in the food group that person's income and expenses to the FS group.

This page last updated in Release Number: 15-01

Release Date: 01/22/15

Effective Date: 01/22/15