May 8 2013 12:00 AM

In a rare change of pace, the state House of Representatives wants more facts before deciding on a controversial policy.

At issue: drugs, and the extent to which government can and should tell people how to live their lives. It is one of those gray-area issues pitting the legitimate concern over abuse of illegal drugs against civil liberties and unreasonably stigmatizing welfare recipients.

Nobody can say for certain if there is a problem unique to welfare recipients, or if the proposed solution will work. Given the conflict over policy imperatives and the lack of data, the House is doing what any university academic would do: Find out more through a one-year pilot program. 

Complicating the debate is a bill flawed through shoddy drafting that could entrap welfare recipients engaging in legal activity. Those flaws can and should be fixed through amendments. 

HB 4118 mandates a one-year, three-county pilot program targeting illegal drug abuse by welfare recipients. It allows drug testing only of adult recipients suspected of abusing controlled substances. Drug abusers are required to participate in rehab programs.

The bill split Democrats in mid-Michigan’s House delegation. Tom Cochran, D-Mason, and Theresa Abed, D-Grand Ledge, joined most Republicans in supporting the legislation. Reps. Andy Schor, D-Lansing, and Sam Singh, D-East Lansing, voted in opposition.

Is this a “nanny state” overreach, or a legitimate state interest?

“Nanny state” is a sensitive subject, whether it’s efforts by New York’s mayor to limit the size of soft-drink cups or seat-belt and motorcycle-helmet laws. All are good for you, but is it government’s role to dictate smart choices? On issues such as this, the answer is usually: “It depends.”

Backers say HB 4118 doesn’t cross into nanny-statism because it deals only with those engaging in illegal activity. The loose language of the bill, though, may also ensnare recipients engaged in legal activities: users of medical marijuana and people legally using prescription painkillers such as Vicodin and OxyContin.

Cochran admits concern about the pilot drug-testing program having the potential of being overly broad as it relates to legal use of marijuana and narcotic painkillers.

“Certainly if it’s a legal prescription and they are taking it for chronic pain, those people should not be included in this,” he said.

Even so, Cochran conceded it’s a close call as to whether this is regulatory excess.

“Yes, there are some issues from a libertarian point of view regarding the state dictating what people can and cannot do. But this is a pilot program. Let’s give it a try and see how it works. Hopefully we can help out some people.”

This is the second effort by Michigan lawmakers to drug test welfare recipients. A 1997 law, the nation’s first, mandated drug testing of all welfare recipients. That was stopped through a federal lawsuit. A 2003 agreement between the state and ACLU limited drug testing to “reasonable suspicion.” (A similar 2011 Florida law was overturned by federal courts earlier this year.)

This proposal avoids that trap by requiring testing only after suspicion of drug abuse based on “an empirically validated substance abuse screening tool.” It is similar in concept to the “implied consent” doctrine used to enforce laws against drunk driving: Take a breathalyzer or lose your license.

But the bill needs fixing. 

In addition to being silent on legal uses of controlled substances, it doesn’t define what constitutes “abuse” of a controlled substance. Is “abuse” any illegal use of a controlled substance? Or only use that results in negative behaviors?

It also raises privacy concerns, leaving the door open for information to be shared with law enforcement.

The pilot program needs to answer two questions: Is this needed? And will it work?

Existing data is spotty and contradictory.

A seven-year study by the Ford School of Public Policy at the University of Michigan found that 16 percent to 21 percent of Temporary Assistance for Needy Families had used illicit drugs in a 12-month period. About 3.5 percent had a drug dependence or abuse problem. Those numbers are somewhat higher than in the overall population as reported by the Centers for Disease Control. But both a Senate Fiscal Agency study and a short-lived mandatory testing program in Florida last year found no significant differences in drug abuse rates between welfare recipients and the general public.

Critics say the bill unfairly targets welfare recipients. In a constituent email earlier this week, Schor told constituents “it unfairly targets and punishes low-income families seeking temporary assistance. There is no evidence showing that there is a higher use of drugs amongst low-income individuals or that there is any cost savings for the state attached to implementing this type of program.”

A “fairness amendment,” extending the pilot program to include legislators, was defeated on a voice vote.

Will it work? We don’t know. A pilot study makes sense. Good policy decisions should be based on valid, complete information.