3.20.1 Drug Felons

7 CFRCode of Federal Regulations 273.11(m)

For FoodShare eligibility purposes, a drug felon is a person (adultA person who is 18 years old or older 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 five years. An individual with a court finding of “Guilty but not guilty due to mental disease/defect,” or a similar ruling that results in the individual having been found to be mentally incompetent, is not to be considered a drug felony conviction. Convicted drug felons must have a negative drug test result (pass) to become eligible for FoodShare. The drug test should include the drug for which the applicant or member received the felony conviction. Drug felons who 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 renewal. 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 member must state whether he or she or any member of his or her food unit has been convicted in any state or federal court of a felony for possession, use, or distribution of a controlled substance. The applicant/member's signature on the Application Summary is sufficient to satisfy this requirement.

See Process Help Section 2.6 Requesting Drug Test Verification.

3.20.1.1 Applications

During the FoodShare interview, IM workers must notify applicants and food unit members of the drug testing policy if anyone in the household has been convicted of a drug felony in the past five years, the consequences of a positive (failed) drug test or refusal to submit a drug test, and the applicant’s right to decline aid.

Applicants and food unit members who meet the definition of a drug felon must agree to and pass a drug test within 30 days from either the filing date or the date that the member is notified of the drug testing requirement to be found eligible. Upon agreement to take the test, find the applicant eligible. If an applicant passes the test, he or she would remain eligible for ongoing benefits. If a currently eligible food unit member passes the test, he or she would continue to be eligible. If the applicant or food unit member refuses to take a drug test, he or she will be ineligible (gross deemer without a sanction) for FoodShare until he or she agrees to take a drug test.

If the drug test result is positive, the applicants food unit member is ineligible for 12 months from the next possible benefit month. If the drug test result is negative, the individual remains eligible. Do not retest the individual at renewal. If applicants decline to submit to a drug test or fail to complete the test within 30 days, he or she is not subject to the 12-month sanction period. The applicant may reapply for FoodShare and complete the test at any time.

In the pre-drug test information gathering process, the FoodShare 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, he or she should not be sanctioned if he or she 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. IM workers must also inform applicant members who have agreed to a drug test that some non-prescription medications (e.g. cold medicine) and some foods (e.g. poppy seeds) may cause a positive result.

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

Applicants who miss a scheduled drug test should lose eligibility for the next possible month and no sanction will be applied. If the applicant later agrees to take a test within the application period, another drug test can be scheduled. If he or she takes and passes this test, eligibility should be reinstated for the next possible benefit month. If the applicant misses a drug test and requests another test after the initial application period, the test should be scheduled. If he or she passes this test, approve benefits for the next possible benefit month.

Note: A member of a food unit found ineligible for FoodShare due to failing to take a drug test will become a gross deemer.

For a one person food unit, a missed drug test appointment would result in a denial of the FoodShare application. 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 FoodShare 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 IM worker schedules the drug test for June 25. No other verification is needed by June 21, so the IM worker processes the application and Jane is found eligible for June, July, and August FoodShare benefits. Results from the drug test are received by the IM worker on July 2. Jane failed the drug test. Jane will be sanctioned effective August 1 for 12 months. Her two children remain eligible for FoodShare .

3.20.1.2 Ongoing cases

If a felony drug conviction is reported for an eligible FoodShare member at renewal 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 FoodShare assistance group until the individual agrees to take the test. If a felon tests positive on a drug test, deny FoodShare for the individual for 12 months starting in the next possible benefit month.

If the agency later finds the member is subject to drug felon policy, require a drug test for the continuation of benefits. The agency should also pursue an IPV for falsifying information at the time of application and recover the benefits received from the application date until a negative drug test result is received. The member will only be eligible once the agency receives a negative drug test result.

Example 2: Bob is receiving FoodShare with his girlfriend and her daughter. He was convicted of a drug felony on June 29 and reported this at his July renewal on July 12. 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.

An IM worker may discover an unreported drug felony or incomplete Drug Felon page in an open or ongoing case. If it is within the five-year look back period, the IM worker must complete Form F-01542 Notification of Required Drug Testing and mail it to the member. The IM worker must also either request that the member call to schedule a drug test or schedule a drug test and notify the member of the time and date.

Example 3: In August, Mark requests to be added to Cindy’s FoodShare case. Mark has declared he is not a convicted drug felon. However, when the IM worker gets to the Individual Non-Financial gatepost page, there is an indication that someone in the household is a convicted drug felon. Cindy is listed as a convicted drug felon who agreed to complete a drug test. There is no drug test date and no drug test results recorded in CWWCARES Worker Web for Cindy. The IM worker will need to notify Cindy by using form F-01542 that she must submit to and pass a drug test in order to maintain FoodShare eligibility.

Note: Members who are a food unit member subject to simplified reporting rules (also referred to as reduced reporting) are not required to report a drug felony as part of the change reporting process. See section 6.1.1.2 Reduced Reporting.

3.20.1.3 Regaining Eligibility

To regain eligibility after 12 months, the drug felon must reapply and submit to another drug test, unless the five-year look back period has expired at the time of reapplication. If the individual does not submit to a test, continue to deny the individual until a test is agreed to. Note the individual will continue to be gross deemer, he or she is not however in “sanction” status. 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 FoodShare 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 FoodShare program for an additional 12 months. As with other sanctions that end, the individual must re-request FoodShare. The individual will not automatically be eligible when the sanction period ends.

If the ineligible drug felon is in the food unit, 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 FoodShare assistance group.

This page last updated in Release Number: 18-03
Release Date: 07/20/2018
Effective Date: 07/20/2018