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State of Wisconsin |
Release 26-01 |
§49.79(5)(a)
For FoodShare eligibility purposes, a person convicted of a drug-related felony is a person (adult or a minor) convicted of a felony in a state or federal court involving the possession, use or distribution of a controlled substance within the last five years. A person with a court finding of “Guilty but not guilty due to mental disease/defect,” or a similar ruling that results in the person having been found to be mentally incompetent, is not considered to have a drug-related conviction.
A FoodShare applicant or member must state whether they or any member of their food unit has been convicted in any state or federal court of a felony for possession, use, or distribution of a controlled substance in the past five years as a part of the application and renewal process. By signing (written, telephonic, electronic) the application or renewal, the applicant or member is attesting to the answer provided.
Applicants or members that have been convicted of a drug related felony must agree to take a drug test and provide passing test results to maintain FoodShare eligibility.
A person must only take and pass a drug test once after a drug-related felony conviction. Do not require a new drug test if there is a documented passed drug test after the person’s most recent drug-related felony conviction. A new drug test is only required if the person is convicted of an additional, more recent drug-related felony.
| Example 1 | Kelly applied for FoodShare in August. During the application process, she reported a drug-related felony conviction and passed a drug test. She is found eligible for FoodShare. At her next SMRF, she did not complete all requirements timely and her case closed. Kelly must re-apply to receive FoodShare again. At this application, she is not required to take and pass another drug test because she has not received a new drug-related felony conviction. |
Do not require a drug test if the felony conviction 5-year look back falls within any of the following scenarios: the month of application or renewal, the month of re-request, the verification period, or within the following 30 days.
| Example 2 | Ian applied for FoodShare on July 17, 2023. During the interview on July 21, Ian states he is a drug felon. His conviction date is August 1, 2018. Ian will not be required to submit to drug test because his 5-year look back period would expire on August 1, this is within his 30-day application processing period. |
Drug tests must only be administered by trained professionals outside of the Income Maintenance (IM) and Tribal Income Maintenance staff. IM agency staff, regardless of position or title, cannot administer the drug tests.
Applicants and members cannot self-administer the drug tests.
Results can be received from the following types of entities which include but are not limited to:
If a person has received a passing drug test result in the last 30 days by another entity such as their probation agent, a drug counselor, or an employer, they can use those results and not take another test. Passing drug tests from the last 30 days do not need to meet the drug test requirements in Section 3.20.1.3.
A professional administering a drug test should collect documentation of any prescriptions and address any resulting positive test. However, if a person convicted of a drug-related felony reports to the IM worker they have a valid prescription and can provide documentation that they were prescribed a medication that resulted in a positive drug test, excluding medical marijuana, the sanction can be lifted, and the drug test is to be considered to have been passed.
Drug tests solicited by the IM agency must meet the requirements as follows:
Any test (rapid or sent to a lab) that meets these requirements is acceptable.
Drug test results provided by an applicant or member from another entity are not required to meet these criteria. If the other entity uses a different sampling method or different drug panel, the passing results must still be accepted and a new test not required.
If there is a cost associated with the drug test, IM is responsible for paying for the drug test.
Workers must give members the information necessary to schedule and take the drug test. This includes but is not limited to any referral paperwork, the vendor’s name, address, special instructions, or phone number. Members must provide verification of the test date and results. Without verification, the member will lose eligibility in the next possible benefit month and become a gross deemer. Workers may need to extend he verification due date to give members adequate time to schedule, conduct, and return drug test results. Clearly document all actions taken in case comments.
Applicants must self-attest if they have been convicted of a drug felony within the past five years. Members completing a renewal must self-attest to any previously unreported convictions within the past five years.
During the application or renewal interview, it must be explained that people convicted of a drug-related felony in the past five years, must take and pass a drug test to be eligible for FoodShare. A drug test that was taken and passed at the time of application, will not require another drug test at renewal. A drug test is required at renewal if there is a new person convicted of a drug related felony or a previously unreported drug felony.
Upon agreement to take the test, the person is eligible, and benefits must be issued if they meet all other eligibility criteria. If they pass the test (negative test result), they remain eligible for ongoing benefits.
If they refuse to take a drug test, they are ineligible (gross deemer without a sanction) for FoodShare, effective the next possible benefit month. Members who don’t take a test can reapply at any time. If they reapply, they must agree to take a drug test, unless the conviction is more than five years old.
If they fail the drug test (positive result), they must be sanctioned for 12 months (gross deemer with a sanction) effective the next possible benefit month. During this time, they cannot regain FoodShare eligibility. They must serve the full sanction. If the member failed the drug test but had a prescription for the drug(s), the sanction must be lifted and eligibility restored.
An individual subject to the drug testing policy must verify the drug test date and the result of the test. If verification of the test date and result is not provided, the individual will lose eligibility the next possible benefit month and become a gross deemer.
See Section 4.7.6 Gross Deeming
If the drug test is inconclusive, the person must retake the test until they receive a passing or failing result. If the member does not retake the test, they must be determined ineligible for not agreeing to take a drug test. The person must be given an adequate amount of time to reschedule, retake, and receive the results of any additional drug tests. This may require a verification due date extension.
Benefits issued while a drug test result is pending are not recoverable if the drug test is failed.
| Example 2 | On June 19, Jane applies for FoodShare for herself and her two children. Jane reports having a drug felony conviction from three years ago and agrees to take a drug test. The drug test was scheduled for June 25. The application is processed, and Jane is found eligible for June and July FoodShare benefits. Verification for Jane’s drug test results are requested for ongoing eligibility. The drug test results are received on July 2. Jane failed the drug test. Jane is sanctioned effective August 1 for 12 months. Jane’s two children remain eligible for FoodShare. |
| Example 3 | Jeremy applies and completes his interview on January 10, at which time he agrees to take the drug test. Jeremy’s application is processed, and he is found eligible for benefits. Jeremy’s ongoing case is then pended and a request for drug test results is sent. Jeremy has 20 days to provide a passing drug test result. If a positive test result is received, he will be sanctioned and his benefits will be terminated. |
To regain eligibility after a 12-month sanction, the person with the drug-related felony must re-request FoodShare. They will need to agree to take another drug test, unless the conviction is more than five years old. If the person does not agree to take a drug test, continue to deny them. The person will continue to be gross deemer if they are on an open FoodShare case, however, they are not in “sanction” status. If the person agrees to take a test, continue to deny benefits for the person until the results are received.
If they pass their drug test, they may be eligible for FoodShare as of the first of the month following the month in which they agreed to take the test. If they fail the drug test, they will be sanctioned for another 12 months. For new applications, once a drug test is passed following a sanction, FoodShare will open back to the filing date.
Reminder, as with other sanctions that end, the person must re-request FoodShare. They will not automatically be eligible when the sanction period ends.
If the ineligible person with a drug felony conviction is in the food unit, deem that person's income and expenses to the FoodShare assistance group.
This page last updated in Release Number: 26-01
Release Date: 04/15/2026
Effective Date: 04/15/2026
Notice: The content within this manual is the sole responsibility of the State of Wisconsin's Department of Health Services (DHS). This site will link to sites outside of DHS where appropriate. DHS is in no way responsible for the content of sites outside of DHS.
Publication Number: P-16001