AUGUSTA — Maine’s commissioner for the state Department of Health and Human Services said Monday she is still waiting on the state’s top lawyer before moving forward on a law that’s nearly three years old.

A federal law passed in 1996 prohibits distributing Temporary Assistance for Needy Families to individuals who have been previously convicted of felony crimes for use, possession or distribution of illegal drugs.

But the federal law also allows states to opt out of the ban or to modify it, which Maine did. But in 2011, Maine’s Legislature agreed to allow drug felons who apply for TANF to be eligible provided they are tested to show they were no longer using illegal drugs.

DHHS Commissioner Mary Mayhew said her office sent a proposed rule change based on the law to Attorney General Janet Mills in September but has not heard back from Mills.

That proposed rule allows TANF recipients who test positive for drugs to either retest or to enroll in a DHHS-approved substance abuse treatment program in order to remain eligible for the benefits. Under the rule, those who fail to disclose they are convicted drug felons could see their benefits terminated for life.

But so far Mills has not issued final approval of the change. Other states, including Florida, which required blind drug testing of all who apply for TANF, have seen their laws struck down in federal court for being unconstitutional.

“DHHS sent the attorney general a proposed rule to govern the drug testing of welfare applicants convicted of drug-related felonies, as called for by Gov. LePage and the Legislature,” Mayhew said in a statement issued to the Sun Journal on Monday. “Unfortunately, we have still not heard back from Attorney General Mills regarding her review.”

As it stands, those with felony drug convictions can currently apply for and receive TANF benefits without being tested for drugs, according to David Sorensen, a spokesman for DHHS. Sorensen said there were no clear estimates on how many individuals receiving TANF benefits were convicted drug felons.

Maine’s law (and that of at least five other states), which only applies to those previously convicted of drug crimes, has not been challenged in court and appears to do what federal law intended.

But advocates for the poor and civil rights groups have criticized Mayhew and LePage for pushing for drug testing for welfare recipients.

“The governor should be focused on policies that help Maine families, not yanking out the safety net and depriving them of food,” Alison Beyea, executive director of the ACLU of Maine, said in a written statement in August. “If we truly want to combat drug addiction, we should fund more drug treatment programs rather than blocking access to much-needed assistance.”

But Mayhew said Monday the issue wasn’t about punishing those with drug addiction, it was about making sure federal funds are being used for their intended purpose.

“This is an important reform measure that will bring accountability to Maine’s welfare system and help us to prioritize services for the truly needy,” Mayhew said as she urged Mills to move quickly on the rule. “We look forward to the attorney general quickly finalizing this rule so that we can implement this bipartisan law.”

Tim Feeley, a spokesman for Mills, said an assistant attorney general assigned to the rule change was working with DHHS to make some changes to the rule to make sure it would withstand a court challenge.

“We expect to continue discussions with the department and to complete final review as to form and legality within the review period allowed by (state law or 150 days), despite the staff shortages our office has seen in recent months,” Feeley wrote in a message to the Sun Journal.

Peter Steele, the communications director for LePage, said the governor fully intended to move forward with the change.

“The governor is committed to implementing this important part of welfare reform,” Steele said. “All year long on the campaign trail, the governor heard from Mainers on a daily basis that they want him to continue with common-sense welfare reforms such as photos on EBT cards and drug testing for TANF applicants or recipients who have been convicted of drug-related felonies.”

Steele said LePage, like Mayhew, wanted the state’s welfare benefits to go to those who most needed them.

“Mainers are always ready to help their neighbors,” Steele said, “but they want a welfare system that is affordable, accountable and directs resources to our truly needy, not to those who would abuse the system or use taxpayer-funded benefits to feed a drug habit.”

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