Section 49-4-193. Established drug testing; ineligibility for benefits based upon positive tests; drug treatment; impact of drug use by parents on children; confidentiality; exceptions

   (a) As used in this Code section, the term "established drug test" means the collection and testing of bodily fluids administered in a manner equivalent to that required by the Mandatory Guidelines for Federal Workplace Drug Testing Programs (53 C.F.R. 11979, et seq., as amended) or other professionally valid procedures approved by the department; provided, however, that where possible and practicable, a swab test shall be used in lieu of a urinalysis.

(b) The department shall adopt rules and regulations for an established drug test which shall include the following:

   (1) Which illegal drugs will be the subject of testing;

   (2) Methods for assuring minimal privacy intrusions during collection of body fluid specimens for such testing;

   (3) Methods for assuring proper storage, transportation, and handling of such specimens in order to ensure the integrity of the testing process;

   (4) The identity of those persons entitled to the results of such tests and methods for ensuring that only authorized persons are given access to such results;

   (5) A list of laboratories qualified to conduct established drug tests;

   (6) A list of approved substance abuse treatment providers;

   (7) Procedures for persons undergoing drug testing, prior to the collection of body fluid specimens for such testing, to provide information regarding use of any drug pursuant to a medical prescription or as otherwise authorized by law which may affect the results of such test;

   (8) A requirement that the test be conducted no later than 48 hours after the application is approved by the department for TANF eligibility. Proof of eligibility from the department shall be issued to the applicant. The applicant shall show proof of eligibility to an authorized test examiner prior to submitting to the test; and

   (9) A requirement that any applicant who demonstrates proof of active and current Medicaid benefits shall pay a drug screening application fee of no more than $17.00, and no authorized test examiner shall conduct a drug test if an applicant demonstrates active and current Medicaid benefits unless the applicant presents a receipt proving that he or she has paid the required drug screening application fee. Eligible applicants who do not have active and current Medicaid benefits shall be responsible for paying the full cost of administering the drug test upon presentation to an authorized examiner.

(c) The department shall require a drug test consistent with subsection (b) of this Code section to screen each individual who applies for assistance. The cost of drug testing shall be the responsibility of the individual tested, provided that the individual does not submit proof of active Medicaid benefits to subsidize the cost of such drug testing pursuant to paragraph (9) of subsection (b) of this Code section. No assistance payment shall be delayed because of the requirements of this Code section, and any payments made prior to the department's receipt of a test result showing a failure shall be recoverable.

(d) Any recipient of cash assistance under this article who tests positive for controlled substances as a result of a drug test required under this Code section shall be ineligible to receive TANF benefits as follows:

   (1) For a first positive result, the recipient shall be ineligible for TANF benefits for one month and until he or she tests negative in a retest;

   (2) For a second positive result, the recipient shall be ineligible for TANF benefits for three months and until he or she tests negative in a retest; and

   (3) For a third and each subsequent positive result, the recipient shall be ineligible for TANF benefits for one year and until he or she tests negative in a retest unless the individual meets the requirements of subsection (f) of this Code section.

(e) The department shall:

   (1) Provide notice of drug testing to each individual at the time of application. The notice shall advise the individual that drug testing will be conducted as a condition for receiving TANF benefits and that the individual shall bear the cost of testing. If the individual tests negative for controlled substances, the department shall increase the amount of the initial TANF benefit by the amount paid by the individual for the drug testing. However, if the individual used an active and current Medicaid benefit pursuant to paragraph (9) of subsection (b) of this Code section to subsidize the cost of the test, the individual shall not be eligible for direct TANF reimbursement. The individual shall be advised that the required drug testing may be avoided if the individual does not apply for TANF benefits. Dependent children under the age of 18 are exempt from the drug testing requirement;

   (2) Require that for two-parent families, one parent shall comply with the drug testing requirement;

   (3) Require that any teen parent who is not required to live with a parent, legal guardian, or other adult caretaker relative shall comply with the drug testing requirement;

   (4) Advise each individual to be tested, before the test is conducted, that he or she may, but is not required to, advise the agent administering the test of any prescription or over the counter medication he or she is taking;

   (5) Require each individual to be tested to sign a written acknowledgment that he or she has received and understood the notice and advice provided under paragraphs (1) and (4) of this subsection;

   (6) Assure each individual being tested a reasonable degree of dignity while producing and submitting a sample for drug testing, consistent with the state's need to ensure the reliability of the sample;

   (7) Specify circumstances under which an individual who fails a drug test has the right to take one or more additional tests;

   (8) Inform an individual who tests positive for a controlled substance and is deemed ineligible for TANF benefits for one year pursuant to paragraph (3) of subsection (d) of this Code section that the individual may reapply for those benefits six months after the date of the positive drug test if he or she meets the requirements of subsection (f) of this Code section; and

   (9) Provide any individual who tests positive with a list of substance abuse treatment providers approved by the department which are available in the area in which he or she resides. Neither the department nor the state shall be responsible for providing or paying for substance abuse treatment.

(f) An individual who tests positive for an illegal drug and is denied TANF benefits for one year may reapply for TANF benefits after six months if the individual can document the successful completion of a substance abuse treatment program offered by a provider approved by the department. An individual who has met the requirements of this subsection and reapplies for TANF benefits shall also pass an initial drug test and meet the requirements of subsection (c) of this Code section. Any drug test conducted while the individual is undergoing substance abuse treatment shall meet the requirements of subsection (b) of this Code section. The cost of any drug testing provided under this Code section and substance abuse treatment shall be the responsibility of the individual being tested and receiving treatment. An individual who fails the drug test required under subsection (c) of this Code section may reapply for TANF benefits under this subsection only once.

(g) If a parent is deemed ineligible for TANF benefits as a result of failing a drug test conducted under this Code section:

   (1) The dependent child's eligibility for TANF benefits shall not be affected;

   (2) An appropriate protective payee shall be designated to receive benefits on behalf of the child; and

   (3) The parent may choose to designate another individual to receive benefits for the parent's minor child. The designated individual must be an immediate family member or, if an immediate family member is not available or the family member declines the option, another individual approved by the department. The designated individual shall also undergo drug testing before being approved to receive benefits on behalf of the child. If the designated individual tests positive for controlled substances, he or she shall be ineligible to receive benefits on behalf of the child.

(h) The results of any drug test done according to this Code section shall not be subject to disclosure under Article 4 of Chapter 18 of Title 50, relating to inspection of public records. Such results shall not be used as a part of a criminal investigation or criminal prosecution. Such results shall not be used in a civil action or otherwise disclosed to any person or entity without the express written consent of the person tested or his or her heirs or legal representative. All such records shall be destroyed and deleted five years after the date of the test.

(i) No testing shall be required by the provisions of this Code section for any person whom the department determines is significantly hindered, because of a physical or mental handicap or developmental disability, from doing so or for any person enrolled in an enhanced primary care case management program operated by the Department of Community Health, Division of Medical Assistance to serve frail elderly and disabled beneficiaries to improve the health outcomes of persons with chronic health conditions by linking primary medical care with home and community based services. In addition, no testing shall be required by the provisions of this Code section for any individuals receiving or on a waiting list for long-term services and supports through a non-Medicaid home and community based services program or for any individual residing in a facility such as a nursing home, personal care home, assisted living community, intermediate care facility for the mentally retarded, community living arrangement, or host home.

(j) The department shall adopt rules to implement this Code section.

Code 1981, § 49-4-193, enacted by Ga. L. 2012, p. 91, § 3/HB 861.