wv-wv-18592: 78-26 — Pilot Program for Drug Screening of Applicants

7/1/2026 9:48:41 AM Office of West Virginia Secretary Of State NOTICE OF PUBLIC COMMENT PERIOD AGENCY: Human Services TITLE-SERIES: 78-26 RULE TYPE: Legislative Amendment to Existing Rule: Yes Repeal of existing rule:No RULE NAME: Pilot Program for Drug Screening of Applicants CITE STATUTORY AUTHORITY: W. Va. Code § 9-3-6(n) COMMENTS LIMITED TO: Written DATE OF PUBLIC HEARING: LOCATION OF PUBLIC HEARING: DATE WRITTEN COMMENT PERIOD ENDS: 07/31/2026 10:00AM AM COMMENTS MAY BE MAILED OR EMAILED TO: NAME: Daron Light ADDRESS: One Davis Square, Suite 100E Charelston, WV 25309 EMAIL: daron.a.light@wv.gov PLEASE INDICATE IF THIS FILING INCLUDES: RELEVANT FEDERAL STATUTES OR REGULATIONS: No (IF YES, PLEASE UPLOAD IN THE SUPPORTING DOCUMENTS FIELD) No INCORPORATED BY REFERENCE: (IF YES, PLEASE UPLOAD IN THE SUPPORTING DOCUMENTS FIELD) PROVIDE A BRIEF SUMMARY OF THE CONTENT OF THE RULE: The rule establishes the drug screening program for applicants for cash assistance through the Temporary Assistance for Needy Families Program, as required by W. Va. Code §9-3-6. SUMMARIZE IN A CLEAR AND CONCISE MANNER CONTENTS OF CHANGES IN THE RULE AND A STATEMENT OF CIRCUMSTANCES REQUIRING THE RULE: The proposed rule amends language to make definitinos consistent with those that appear in the enabling statute and extends the sunset date. The amendments to the rule are necessary due to the passage of HB 5582 during the 2026 Regular Session which changed the drug screening program from a 'pilot' program (previously end dated December 31, 2026) to a permanent program. SUMMARIZE IN A CLEAR AND CONCISE MANNER THE OVERALL ECONOMIC IMPACT OF THE PROPOSED RULE: A. ECONOMIC IMPACT ON REVENUES OF STATE GOVERNMENT: Costs associated with the administration of the drug screening program should now be calculated going forward indefinintely, given the program's now permanent status. B. ECONOMIC IMPACT ON SPECIAL REVENUE ACCOUNTS: N/A C. ECONOMIC IMPACT OF THE RULE ON THE STATE OR ITS RESIDENTS: Drug screening program can impact residents' eligibility for cash assistance through the TANF program. D. FISCAL NOTE DETAIL: Effect of Proposal Fiscal Year 2026 2027 Fiscal Year (Upon Increase/Decrease Increase/Decrease Full (use "-") (use "-") Implementation) 1. Estimated Total Cost Personal Services Current Expenses Repairs and Alterations Assets Other 2. Estimated Total Revenues E EXPLANATION OF ABOVE ESTIMATES (INCLUDING LONG-RANGE EFFECT): N/A BY CHOOSING 'YES', I ATTEST THAT THE PREVIOUS STATEMENT IS TRUE AND CORRECT. Yes Daron A Light -By my signature, I certify that I am the person authorized to file legislative rules, in accordance with West Virginia Code §29A-3-11 and §39A-3-2. 78 CSR 26 TITLE 78 LEGISLATIVE RULE DEPARTMENT OF HEALTH AND HUMAN RESOURCESSERVICES SERIES 26 PILOT PROGRAM FOR DRUG SCREENING OF APPLICANTS FOR CASH ASSISTANCE §78‐26‐1. General. 1.1. Scope. ‐‐ This rule establishes and sets forth the requirements for drug screening applicants of benefits from the Temporary Assistance for Needy Families program under a three‐year pilot program. For the purposes of the pilot program pursuant to the authority and option granted by 21 U. S. C. § 862a(d)(1)(A) to the states, West Virginia hereby exempts all persons domiciled within the state from the application of 21 U. S. C. § 862a(a). 1.2. Authority. ‐‐ W. Va. Code §9‐3‐6(n). 1.3. Filing date. ‐‐ June 26, 2025. 1.4. Effective date. ‐‐ June 26, 2025. 1.5. Sunset Provision. ‐‐ This rule shall terminate and have no further force or effect on December 31, 2026 August 1, 2031. §78‐26‐2. Definitions. All terms contained in this rule shall have the same meaning as set forth in W.Va. Code §9‐1‐2 and §9‐ 3‐6(a). This section sets forth definitions for terms that are not defined in the code, but that appear through this rule. 2.1. Applicant ‐‐ means a person who is applying for benefits from the Temporary Assistance for Needy Families program. 2.2. Case manager ‐‐ means a person employed by the department with responsibility for making a reasonable suspicion determination during the application process for Temporary Assistance for Needy Families. 2.3. Department ‐‐ means the Department of Health and Human Resources. 2.4. Drug screen or drug screening ‐‐ means any analysis regarding substance abuse conducted by the Department of Health and Human Resources on applicants for assistance from the Temporary Assistance for Needy Families program. 2.5. Drug test or drug testing ‐‐ means a drug test which tests urine for amphetamines (amphetamine and methamphetamine) cocaine, marijuana, opiates (codeine and morphine), phencyclidine, barbiturates, benzodiazepines, methadone, propoxyphene and expanded opiates (oxycodone, hydromorphone, hydrocodone, oxymorphone). 2.6.2.1. Drug use questionnaire ‐‐ means an assessment tool to be used by case managers to 1 78 CSR 26 ascertain if there is reasonable suspicion that an applicant is abusing drugs. The questionnaire uses a point‐based system to assist the case manager in determining if there is reasonable suspicion. 2.7.2.2. Protective payee ‐‐ means an individual over age 18 designated to receive public assistance payments for the eligible dependents of another person who is ineligible for benefits for himself or herself. The protective payee may be an immediate family member of the applicant. 2.8. Reasonable suspicion ‐‐ means a score on the drug use questionnaire that indicates the possibility of substance abuse. Reasonable suspicion is also achieved if an applicant has been convicted of a drug related offense within three years of completion of the drug use questionnaire. 2.9. Secretary ‐‐ means the secretary of the department or his or her designee. 2.10.2.3. Substance abuse ‐‐ means the use of prescribed or over‐the‐counter medications used in excess of the recommended dosages, or the use of illegal substances. Substance abuse also includes any non‐medical use of prescribed or over‐the‐counter medications. 2.11.2.4. Treatment program ‐‐ means any substance abuse treatment and counseling program which is licensed by the state of West Virginia and regulated pursuant to 64 CSR 11, 69 CSR 11, 69 CSR 12. 2.12. Temporary Assistance for Needy Families program (TANF) ‐‐ means assistance provided through ongoing cash benefits pursuant to 42 U.S.C. § 601 et seq., operated in West Virginia as the West Virginia Works Program pursuant to W. Va. Code §9‐9‐1 et seq. §78‐26‐3. Drug Screening Process. 3.1. Upon application for TANF benefits all applicants will be provided a drug use questionnaire to complete. Applicants will be required to swear or affirm as to the veracity of their answers and will be subject to prosecution for fraud or suspension from the program for 12 months, or both, for providing false information in accordance with department policies. Public databases may be consulted by the department to verify an applicant’s answers. 3.1.a.3.1.1. Any applicant who has been convicted of a drug related offense within three years of filling out the questionnaire must indicate as such. 3.1.b.3.1.2. Any such drug related conviction shall be considered grounds for reasonable suspicion, for the purpose of referring the applicant for a drug test. 3.2. Should an applicant refuse to complete the drug use questionnaire, the applicant is ineligible for TANF benefits. 3.3. If the drug use questionnaire indicates reasonable suspicion, the applicant will be referred for a drug test. 3.3.a.3.3.1. The applicant and case manager will coordinate to arrange for the applicant to be drug tested by a third‐party vendor. 3.3.b.3.3.2. The drug test must be completed by the applicant within 48 hours of the completion of the drug use questionnaire. 2 78 CSR 26 3.3.c.3.3.3. Should unforeseen circumstances prevent the applicant from completing a drug test within 48 hours, the applicant and the case manager will confer and the case manager will, if he or she deems it appropriate, allow the applicant additional time to complete the test. The case manager shall have discretion to allow the applicant more than 48 hours to complete the test. Second or subsequent requests by the applicant to reschedule a drug test will be decided by the case manager’s supervisor. 3.4. Upon receipt of the drug test results, the case manager will: 3.4.a.3.4.1. Contact the applicant to advise him or her of the results. 3.4.b.3.4.2. If the results are negative, the application will be accepted and the applicant will be assigned an activity under the TANF program. 3.4.c.3.4.3. If the results of the drug test are positive, the application will be accepted and the applicant will be assigned to a treatment program and a job skills program as his or her activities under the TANF program. 3.5. Notwithstanding subdivision 3.4.c., any applicant who submits a positive drug test can avoid assignment to a treatment program if, immediately upon assignment to such a program, the case manager is informed by the applicant that he or she is in possession of a valid prescription for the type and quantity of drug(s) that created the positive test result. Within 24 hours of informing the case manager of possession of a valid prescription(s), the applicant shall produce the prescription. §78‐26‐4. Substance Abuse Treatment and Counselling Program Requirements. 4.1. Upon assignment to treatment by a case manager, the applicant will have seven days to enroll in a treatment program. Should unforeseen circumstances prevent the applicant from enrolling in a treatment program within seven days, the applicant and the case manager will confer, and the case manager will, if he or she deems it appropriate, allow the applicant additional time to enroll. The case manager shall have discretion to allow the applicant more than seven days to enroll. At the same time, the case manager will assign the applicant to a job skills program of the secretary’s choosing. 4.2. Once an applicant is enrolled in a program he or she shall provide the case manager with weekly time sheets which have been provided to the applicant by the case manager. The applicant will also provide the case manager with weekly progress reports from the treatment program. 4.3. In similar fashion to the original drug test, the case manager will coordinate with the applicant to arrange for the applicant to be drug tested by a third‐party vendor upon the completion of the treatment program. Again, such drug testing will be arranged by the applicant and the case manager and will be conducted by a third‐party vendor pursuant to the provisions of subdivision 3.3.c. of this rule. 4.4. Upon successful completion of the substance abuse program, the applicant will be assigned to a new activity such as job searching, community college enrollment, or other similar activities to prepare the applicant for job placement. 4.5. The applicant shall continue to be subject to periodic, random drug testing. 4.6. Should an applicant referred for treatment refuse to enroll in a treatment program or participate in a job skills program, he or she is, subject to applicable federal law, ineligible for TANF benefits. 3 78 CSR 26 4.7. Any applicant referred for treatment who does not succesfully complete both a treatment program and a job skills program is ineligible for TANF benefits, until successful completion of both programs. 4.8. If an applicant fails a random drug test after completion of the required programs, his or her receipt of TANF benefits shall be suspended until he or she successfully completes a second treatment program and job skills program, or for 12 months, whichever period shall be shorter. 4.9. An applicant’s third positive drug test shall, subject to applicable federal law, render him or her ineligible for TANF benefits. §78‐26‐5. Other Adult Members, Dependent Children and Protective Payee. 5.1. A protective payee may be designated for any applicant who is ineligible for TANF benefits due to: 5.1.a.5.1.1. The applicant’s refusal to fill out a drug use questionnaire or participate in a drug test; 5.1.b.5.1.2. The applicant’s refusal to participate in a treatment program; or 5.1.c.5.1.3. The applicant’s second or third positive drug test. 5.2. Upon an ineligibility determination as provided in subection 5.1., the applicant may designate a protective payee. The protective payee will receive TANF on behalf of the other eligible dependents in the applicant’s household. The protective payee shall have a fiduciary duty to properly expend all TANF monies received on behalf of the other eligible dependents. 5.3. The applicant shall present the proposed protective payee to his or her case manager for approval. 5.4. The secretary shall require the applicant’s designated protective payee to submit to the department’s drug use questionnaire and, if the designated protective payee satisfactorily completes the questionnaire, he or she will be approved as a protective payee for the eligible dependents. 5.5. The secretary reserves the right to audit all usage of TANF monies by the protective payee. §78‐26‐6. Coordination with Child Protective Services. 6.1. An investigation and home visit will be conducted by Child Protective Services (CPS) regarding the children of any applicant whose benefits are suspended without the designation of a protective payee or who has had his or her benefits terminated. 6.2. The investigation and home visit will be conducted by CPS. Once they are completed, CPS will prepare a report which details any action deemed necessary for the health and welfare of the children involved. If the health and welfare of the children involved does not require any action on the part of CPS, the report will state as such. 6.3. If the report indicates that CPS action is necessary, al services provided to the applicant and 4 78 CSR 26 children shall be provided or coordinated by CPS, and not the case manager. §78‐26‐7. Appeal Rights. 7.1. Any applicant or protective payee who believes that he or she has been aggrieved by any action undertaken pursuant to W. Va. Code §9‐3‐6, or this rule, shall have the right to file an appeal with the West Virginia DHHR Board of Review. §78‐26‐8. Confidentiality. 8.1. The secretary will ensure the confidentiality of all drug screen and drug test results administered as part of this program. 8.2. Drug screen and test results will be used only for the purpose of determining eligibility for the TANF program. 8.3. At no time may drug screen or test results be released to any public or private person or entity or any law‐enforcement agency, except as otherwise authorized by this rulelaw. 5