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State of Wisconsin |
Release 24-02 |
§49.79(5)(a)
For FoodShare eligibility purposes, a person convicted of a drug-related felony is a person (adult or a minor) 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. A person with a court finding of “Guilty but not guilty due to mental disease/defect,” or a similar ruling that results in the person having been found to be mentally incompetent, is not considered to have a drug-related conviction.
A FoodShare applicant or member must state whether they or any member of their food unit has been convicted in any state or federal court of a felony for possession, use, or distribution of a controlled substance in the past five years as a part of the application and renewal process. By signing (written, telephonic, electronic) the application or renewal, the applicant or member is attesting to the answer provided.
Applicants or members that have been convicted of a drug related felony must agree to take a drug test and provide passing results to maintain FoodShare eligibility.
A person must only take and pass a drug test once. Do not require a new drug test at renewal or during the certification period if passing drug test results have been received.
Do not require a drug test if the felony conviction 5-year look back falls within any of the following scenarios: the month of application or renewal, the month of re-request, the verification period, or within the following 30 days.
| Example 1 | Ian applied for FoodShare on July 17, 2023. During the interview on July 21, Ian states, he is a drug felon. His conviction date is August 1, 2018. Ian will not be required to submit to drug test because his 5-year look back period would expire on August 1, this is within his 30-day application processing period. |
Drug tests must only be administered by trained professionals outside of the Income Maintenance (IM) and Tribal Income Maintenance staff. IM agency staff, regardless of position or title, cannot administer the drug tests.
Applicants and members cannot self-administer the drug tests.
Results can be received from the following types of entities which include but are not limited to:
If a person has received a passing drug test result in the last 30 days by another entity such as their probation agent, a drug counselor, or an employer, they can use those results and not take another test.
A professional administering a drug test should collect documentation of any prescriptions and address any resulting positive test. However, if a person convicted of a drug-related felony reports to the IM worker they have a valid prescription and can provide documentation that they were prescribed a medication that resulted in a positive drug test, excluding medical marijuana, the sanction can be lifted, and the drug test is to be considered to have been passed.
Drug tests solicited by the IM agency must meet the requirements as follows:
Any test (rapid or sent to a lab) that meets these requirements is acceptable.
Drug test results provided by an applicant or member from another entity are not required to meet these criteria. If the other entity uses a different sampling method or different drug panel, the passing results must still be accepted and a new test not required.
If there is a cost associated with the drug test, IM is responsible for paying for the drug test.
Applicants and members who need to take a drug test must be provided with all the information needed to schedule their drug test. This includes any referral paperwork, the vendor’s name, address, special instructions, phone number, etc. If the applicant or member requests help in scheduling the test, the worker must assist them. The worker must document the method in which they provided the information to the member such as by phone or mail and what information they provided to the member. They also need to document if any additional assistance in scheduling was provided. Ensure the applicant or member has adequate time to schedule, take the drug test, and have the results returned. Note this may require a verification due date extension. Clearly document all actions taken in case comments.
Applications must self-attest if they have been convicted of a drug felony within the past five years. Members completing a renewal must self-attest to any previously unreported convictions within the past five years.
IM workers must explain to members convicted of a drug-related felony in the past five years, that they will need to take and pass a drug test to maintain FoodShare eligibility. This applies at application and renewal if the drug felony was previously unreported.
Upon agreement to take the test, find the person eligible if they meet all other eligibility criteria. If they pass the test (negative test result), they remain eligible for ongoing benefits.
If they refuse to take a drug test, they must be determined ineligible (gross deemer without a sanction) for FoodShare, effective the next possible benefit month. Members who fail to take a test can choose to agree to take a drug test at any time.
If they fail the drug test (positive result), they must be sanctioned for 12 months (gross deemer with a sanction) effective the next possible benefit month. During this time, they cannot gain FoodShare eligibility. They must serve the full sanction.
If the drug test is inconclusive, the person must retake the test until they receive a passing or failing result. If the member does not retake the test, they must be determined ineligible for not agreeing to take a drug test. The person must be given an adequate amount of time to reschedule, retake, and receive the results of any additional drug tests. This may require a verification due date extension.
| Example 2 | On June 19, Jane applies for FoodShare for herself and her two children. Jane reports having a drug felony conviction from three years ago and agrees to take a drug test. The IM worker helps her schedule the drug test for June 25. The IM worker continues to process the application and Jane is found eligible for June and July FoodShare benefits. The worker confirms June and July benefits and pends Jane’s case for the drug test results August forward. The drug test results are received on July 2. Jane failed the drug test. Jane is sanctioned effective August 1 for 12 months. Jane’s two children remain eligible for FoodShare. |
To regain eligibility after a 12-month sanction, the person with the drug-related felony must re-request FoodShare. They will need to agree to take another drug test, unless the conviction is more than five years old. If the person does not agree to take a drug test, continue to deny them. The person will continue to be gross deemer if they are on an open FoodShare case, however, they are not in “sanction” status. If the person agrees to take a test, continue to deny benefits for the person until the results are received.
If they pass their drug test, they may be eligible for FoodShare as of the first of the month following the month in which they agreed to take the test. If they fail the drug test, they will be sanctioned for another 12 months. For new applications, once a drug test is passed following a sanction, FoodShare will open back to the filing date.
Reminder, as with other sanctions that end, the person must re-request FoodShare. They will not automatically be eligible when the sanction period ends.
If the ineligible person with a drug felony conviction is in the food unit, deem that person's income and expenses to the FoodShare assistance group.
This page last updated in Release Number: 24-02
Release Date: 08/22/2024
Effective Date: 08/22/2024
Notice: The content within this manual is the sole responsibility of the State of Wisconsin's Department of Health Services (DHS). This site will link to sites outside of DHS where appropriate. DHS is in no way responsible for the content of sites outside of DHS.
Publication Number: P-16001