Medicaid Rules on Drug Testing
The federal government has never allowed drug testing as a requirement or condition for eligibility in the Medicaid program. Nevertheless, some states have proposed making eligibility for Medicaid for non-elderly, non-disabled adults contingent on undergoing a drug test.
The Medicaid statue lays out how a person can qualify for Medicaid based on income and other “categorical eligibility” factors such as being disabled, a senior or pregnant. Tying eligibility to mandatory drug testing, screening and/or mandatory treatment falls far outside these statutory guidelines.
Section 1115 allows the Secretary of Health and Human Services to approve waivers of certain Medicaid rules to let states pursue demonstration projects that promote the objectives of the Medicaid program. Without Congressional authority, the Secretary may not add an additional eligibility factor to the Medicaid statute, particularly one that does not advance the program’s objectives.
Arguments for Keeping Drug Testing out of Medicaid Eligibility
There is a strong legal case against a drug testing requirement
- Drug testing as a condition of Medicaid eligibility runs directly counter to the objective of the Medicaid program. Section 1115 waivers must promote the objectives of the Medicaid program. The objectives of the Medicaid program are to “to furnish medical assistance… [to individuals] whose incomes and resources are insufficient to meet the costs of necessary medical services…” Conditioning Medicaid coverage on the results of a drug test and an otherwise qualified applicant’s willingness to seek treatment will bar many low-income people who cannot afford necessary medical services from receiving vital care.
- Drug testing violates the Americans with Disabilities Act. The ADA explicitly requires that “an individual shall not be denied health services or services provided in connection with drug rehabilitation on the basis of the current illegal use of drugs if the individual is otherwise entitled to such services.” The Medicaid program's statutory purpose and critical day-to-day role is to provide health services to low income people.
Drug testing will deter individuals from getting Medicaid coverage and therefore accessing treatment
- Instead of promoting treatment for people with substance use disorders, making drug testing a part of Medicaid applications will drive people away from seeking treatment making substance use epidemics worse. Rather than connect individuals with treatment, drug testing by the state will deter individuals who are wary of the invasive process and fearful of legal repercussions from the state.
- It could lead to public health crises as people are barred from necessary medical care. Drug testing’s deterrent effect will have both individual and public health ramifications, as people who are uninsured disproportionately fail to seek treatment and receive care for infection disease. This is particularly true with respect to diseases like HIV-AIDS and Hepatitis C which are both prevalent among intravenous drug users and highly contagious.
There is no basis in evidence or in law for making drug testing a requirement for Medicaid eligibility or any other type of health insurance.
The cost is far more than any perceived benefit. The Wisconsin Legislature found that drug testing would cost approximately $33 per test. This spells hundreds of thousand dollars in administrative costs to the state and a burdensome, invasive process for applicants. These are dollars that could be better put towards health care services or early intervention programs that help people before they become addicted.
If mandatory drug testing is approved as part of a waiver, what advocates can do.
As of August 2017, drug testing as a condition of Medicaid eligibility had not been approved as part of any Medicaid waiver. For the reasons outlined above, required drug testing is illegal, outside of the Secretary’s authority under section 1115, an abuse of the Secretary’s discretion, and bad public policy that will discriminate against a class of Medicaid eligible individuals.
However, if mandatory drug testing is approved, there are things advocates and others can do that will support getting this requirement removed from the program.
Collect Evidence of the impact of the program.
- Require frequent (at least every six month) evaluations. Rigorous, objective evaluations of the program—its effect on consumers, the state budget, the state economy and Medicaid administrative costs—will be critical in making the case to change the waiver. Try to get at trusted messenger like a University, non-partisan think tank or foundation involved to supplement any data the state releases.
- Clients adversely affected by the program are potential plaintiffs in any lawsuit. It is especially important in challenging drug testing in a waiver that client injury is documented in detail. These clients and their stories will form the basis for future litigation to overturn drug testing requirements.
- Build a diverse coalition. Reach out to groups that might join a coalition to argue for moving away from drug testing. This could include hospitals, chambers of commerce, patient advocacy and anti-poverty organizations, civil rights groups and others. All efforts should underscore the positive effects of Medicaid, both in terms of residents' health and the state economy, and the adverse impact of a drug testing on state priorities.