Robert E. Gladd,
Thesis work-in-progress internet edition:
The National Alliance for Model State
The Internal Revenue Service charters tax-exempt non-profit
charitable organizations meeting certain criteria pertaining to non-partisan
cultural, religious, scientific, educational and other public service activities.
§ 501(c)(3) organizations are specifically prohibited from engaging
in political campaigns and legislative lobbying. In the words of the IRS:
Pushing the envelope on IRS § 501(c)(3) non-profit
“charitable organization” regulations
The exempt purposes set forth in § 501(c)(3) are charitable,
religious, educational, scientific, literary, testing for public safety,
fostering national or international amateur sports competition, and the
prevention of cruelty to children or animals. The term charitable is used
in its generally accepted legal sense and includes relief of the poor,
the distressed, or the underprivileged; advancement of religion; advancement
of education or science; erection or maintenance of public buildings, monuments,
or works; lessening the burdens of government; lessening of neighborhood
tensions; elimination of prejudice and discrimination; defense of human
and civil rights secured by law; and combating community deterioration
and juvenile delinquency...
A curiosity obtains: “The National Alliance for Model State Drugs Laws,”
a tax-exempt organization directly funded with taxpayer dollars, one boasting
of a mandate to influence anti-drug legislation at the state level,
in apparent direct contravention of § 501(c)(3) intent. The following
is excerpted from their website located at www.natlalliance.org.
...A § 501(c)(3) organization may not engage in carrying on
propaganda, or otherwise attempting, to influence legislation as a substantial
part of its activities. Whether an organization has attempted to influence
legislation as a substantial part of its activities is determined based
upon all relevant facts and circumstances.”
Source: U.S. Internal Revenue Service § 501(c)(3)
regulations, online at www.irs.ustreas.gov/prod/bus_info/eo/exempt-req.html
|The National Alliance for Model State Drug Laws began
as the President’s Commission on Model State Drug Laws (Commission), a
Congressionally established body charged with creating a model code of
laws to help states effectively address alcohol and other substance abuse...
...[The Commission developed] 44 model laws and policies
which offer a comprehensive continuum of responses and services to fully
address alcohol , tobacco and other substance abuse problems. Tough sanctions
punish those persons who refuse to abide by the law. Equally important,
the sanctions are designed to be constructive, promote prevention, and
attempt to leverage alcohol and other substance abusers into treatment.
The 44 legislative remedies are in a Final Report comprising five volumes:
In December 1993, the Commissioners submitted their model
laws to the National Governors Association, the National Conference of
State Legislatures, Attorney General Janet Reno and Dr. Lee Brown, then
Director of the Office of National Drug Control Policy. President Clinton
distributed the Final Report and the accompanying treatment study by Rutgers
University to state and local leaders early the following year.
Crimes Code Enforcement
Drug-Free Families, Schools & Workplaces
Recommendations, no matter how promising, become reality
only when they are acted upon. The Commissioners feared that simply mailing
out the Final Report would lead to their model laws collecting dust on
shelves. Their solution was to create The National Alliance for Model State
Drug Laws (Alliance), a 501(c)(3) nonprofit organization, to serve as an
ongoing resource on the model laws and related state legislation.
Funded by Congressional appropriations, the Alliance,
in coordination with the Bureau of Justice Assistance and the Office of
National Drug Control Policy, are holding state model drug law conferences
across the country. These one-day events are intense, hands-on workshops
designed to educate state individuals about the model laws and policies...
We offer our model laws as a menu of options from which
the individuals select those which they believe will most effectively help
the state. The ultimate decisions about what to do rest with the conference
participants, strengthening their commitment to see their recommendations
to fruition. The Alliance has already co-sponsored 9 successful state conferences,
and plans to hold many more such events in the coming years.
Drugs... Everybody’s Problem.
Illegal drugs burden society with approximately $67 billion
in social, health and criminal costs each year.
Nearly 1 out of 5 Federal dollars spent on Medicaid is attributable
to substance abuse.
Up to 50% of all general hospital admissions are alcohol
and drug related.
Untreated alcoholics incur general health care costs that
are at least 100% higher than those of non-alcoholics.
Of the 12 million current undergraduates, more will ultimately
die from alcohol-related causes (240,000 to 360,000) than will earn MAs
and PhDs combined.
95% of violent crime on campus is alcohol-related
90% of all reported campus rapes occur when alcohol is being
used by either the assailant or the victim.
One in 3 college students now drinks primarily to get drunk.
60%-80% of criminal defendants are addicted to drugs and/or
33% of all murders or manslaughter incidents are related
to illicit drug and alcohol use. Over 50 % of spousal murders are drug-or-alcohol-related.
In 1993, 54%-81% of adult males arrested and 42%-83% of adult
females arrested tested positive for drugs.
More than 5% (221,000) of the 4 million women who give birth
each year use illicit drugs during their pregnancy.
Overall hospitalization costs for drug-exposed infants and
fetal alcohol syndrome create an annual economic loss to the country of
$0.6 to $3.3 billion.
Over 20 million people abuse or misuse prescription drugs
in the US.
Approximately 15% of all legal controlled substance medications
are used illicitly, that is 33 million prescriptions with 1 billion dosage
units each year.
Cigarettes kill more Americans than AIDS, alcohol, car accidents,
murders, suicides, drugs and fires combined.
90% of all smokers begin to smoke before they turn 18 years
Expected lifetime medical expenditures of the average smoker
exceed those of the average nonsmoker by 28% for men and 21% for women.
71% of all current illicit drug users age 18 and older (7.4
million adults) are employed.
The cost of alcohol and illicit drug use in the workplace,
including lost productivity, medical claims and accidents, amounts to $140
billion per year.
68% of all adult cocaine users in 1995 were employed either
full- or part-time.
The average age at which youth begin drinking is 13.
In 1995, among youths aged 12-13, 4.5% were current illicit
drug users. The highest rates were among young people age 16-17, 15.6 %
and age 18-20, 18%.
Nearly 1 in 20 of today’s high school seniors and 1 in 30
of today’s 10th graders is a current daily marijuana user.
10% of Americans age 18-20 are heavy alcohol users and 15%
have used illicit drugs in the past month.
“To promote comprehensive model state drug laws which significantly
reduce, with the goal to eliminate, substance abuse through effective use
and coordination of enforcement, treatment, education, prevention, community
and corrections resources.”
To educate state legislators, governors and other state and
local individuals about the purposes and application of the model laws,
and the multi-disciplinary partnerships built into the laws.
To help state legislators, governors and other state and
local individuals tailor, revise and update the model laws to address particular
state problems and needs.
To maintain a legislative clearinghouse which provides information
on the model laws and supporting documents, and related state laws and
To facilitate and coordinate collaborative coalition building
among enforcement, treatment, education, prevention and community groups,
and between these groups and state leaders.
The Alliance’s resource center activities include:
Our portfolio of legislative proposals help states provide
a continuum of responses-- enforcement, treatment, education, prevention,
housing and community and workplace-- which:
Providing our model laws and related state statutes on 44
alcohol and other substance abuse topics.
Helping compare our model laws with existing state statutes.
Helping analyze states’ versions of the model laws and related
Sharing legislation, policies, and program ideas among states.
Offering drafting tips and language to tailor our model laws
to individual state needs.
Identifying state resource people on the model laws and related
Providing access to a nationwide network of legal, policy,
and program experts on the model laws and related topic areas.
Giving guidance on policy, legal and substantive issues related
to the model laws and topic areas.
Facilitating partnerships among state officials and substance
Participating in and conducting educational briefings, summits,
meetings, etc. on the model laws and related alcohol and other substance
Intervene early with children with substance abuse related
problems and refer them to treatment.
Provide insurance and Medicaid funding for appropriate levels
and modalities of treatment.
Reduce crime and prison overcrowding.
Teach youth healthy attitudes and the benefits of leading
a substance free life.
Shut down crackhouses and turn boarded buildings into recreation
centers and other useful neighborhood centers.
Stop the laundering of billions of dollars in illegal drug
Provide consumer safeguards regarding managed care.
Decreasing alcohol and drug-related highway fatalities.
Prevent the illegal distribution and diversion of prescription
drugs and chemicals.
Decrease absenteeism, accidents, sick claims and disciplinary
actions in the workplace.
A “charitable organization” involved with facilitating
and coordinating “enforcement” by lobbying (for that is indeed the
appropriate verb) statehouses to enact legislation such as “The Model Drug-Free
Private Sector Workplace Act,” a measure focused on suspicionless drug
testing? This is a legitimate § 501(c)(3) function?
Before examining “The Model Drug-Free Private Sector Workplace
Act,” it is interesting to note the statistics the Alliance proffers to
justify their ends. Once again we witness the customary empirical ambiguities
(spawn of the by now familiar dubious paternity) and CASA-esque mantra
of “alcohol, tobacco ’n drugs” drug war partisans feel compelled to employ
to inflate the apparent extent of the illicit drug “problem” (see
Chapter 2). Look closely: most of the statistics
asserted by the Alliance speak to alcohol and tobacco consumption, with
a bit of “prescription drug abuse” thrown in for good measure.
None of which are relevant to the particulars of “The Model
Drug-Free Private Sector Workplace Act.” This legislative proposal, similar
in thrust and content to those proposed by The Institute
for a Drug-Free Workplace—another organization promoting mandatory
drug testing legislation at the statehouse level—focuses significantly
on providing near-blanket indemnification for private sector employers
conducting suspicionless drug testing. Employers would be immune from lawsuits
resulting from false negative tests (i.e., where an employee tested negative,
subsequently caused an injury accident, and was found to have indeed been
using drugs proximate to the incident. See Section 16.c) and would
limit “defamation” liability in the wake of false positive results “if
the employer’s reliance on a ‘false positive’ was reasonable and in good
faith” (Section 16.b.2).
While the Act declares that private-sector suspicionless
drug testing is not “mandatory,” it states in Section 11.b that
an employer is required to conduct both suspicionless and for-cause
drug testing “in order to qualify as a private sector drug-free workplace
and to qualify for the provisions of Section 5.”
Section 5, Applicable Conditions for a Legal
Policy, states that
[I]t is lawful for an employer to test employees or prospective
employees for the presence of alcohol or other drugs, in accordance with
the provisions of this [Act], as a condition of continued employment or
hiring. However, in order to qualify for protection from litigation regarding
certain legal claims for acting in good faith on the results of a substance
abuse test, employers must implement and maintain a comprehensive drug-free
workplace program and adhere to the procedural safeguards that demand accuracy
and fairness as included in subsequent sections of this [Act].
While the specifications pertaining to “procedural safeguards
that demand accuracy and fairness” do in fact represent a bit of improvement
over the current patchwork of state laws and regulations that leave employees
with widely varying levels of procedural and methodological protection
[ see box
below ], the principal thrust of this Model Act is to provide
employers comprehensive authority to test employees at will with little
fear of liability. Section 11.c: “Nothing in this section shall
prohibit a private employer from conducting random testing or other lawful
testing of employees.” Section 19: “No physician-patient
relationship is created between an employee or job applicant and an employer,
medical review officer, or substance abuse testing laboratory per-forming
or evaluating a substance abuse test solely by the establishment, implementation,
or administration of a substance abuse testing program.” Section
22: “All laws and parts of laws in conflict with this [Act] are
such standardization is not assured; the Alliance makes much of
the purported virtue of the “flexibility” of their approach in modifying
the Model Act in accordance with states’ individual preferences—which are
likely to be deferential to favorable provisions proffered by testing vendors
to the extent that individual state laws and absence of political opposition
permit. The uneven procedural safeguards patchwork is likely to re-emerge,
ranging from forensic standards in a rights-vigilant state such as California
to much more lax oversight in the deep south.
If the history of the regulatory specifications
process concerning Executive Order 12564 (Drug-Free Federal Workplace order)
and CLIA 88 (the federal Clinical Laboratories Improvment Act of 1988)
are any guides, analytical vendors’ advocates will fight tooth and claw
for the removal or emasculation of “overly burdensome” quality assurance
regulations. One has only to peruse the “public review and comment period”
documentation of the E.O. 12564 and CLIA 88 regulatory processes in the
Federal Register to see such quiet commercial self-interest at work. Phrases
such as “too restrictive,” “too costly,” “excessive burden,” and
“fewer challenges...would be adequate...” are sprinkled throughout
the record. See, for example, Federal Register, Vol. 53,
No. 69, April 11, 1988, pp. 11970 - 11989.
We should similarly expect back-door efforts
to attenuate any Alliance-progeny Model Act methodological protections
to commence as soon as a Governor’s ink has begun to dry.
Section 19 is particularly interesting. Vendors
of drug testing services routinely and prominently tout their use of MROs
(Medical Review Officers) to review lab results. An MRO is a licensed physician
(M.D.) with additional training and experience in toxicology, pharmacology,
and analytical chemistry. Critics point out that the MRO function is overwhelmingly
one of providing an aura of professional respectability to the suspicionless
drug testing process—but one doing violence to the ethical duty of the
physician under the Hippocratic Oath and the dictates of the physican-patient
relationship. In this type of tactic (“no physician-patient relationship”)
we see drug testing advocates trying to have it both ways. Justification
for mandatory testing is invariably anchored to interwoven employee health,
safety, and productivity concerns. As Section M-210 (Policy Statement)
Just as schools offer an appropriate platform for
intervention with children and youths with alcohol and other drug problems,
the workplace is an appropriate platform for intervention with adults.
Two-thirds of adult drug users are employed. Adults also have little opportunity
elsewhere to become educated about alcohol and other drug abuse problems
and to be directed to any needed assistance.
In other words, it purportedly is a health issue (and employers
are properly medico-social workers). But, declaring there to be no physician-patient
relationship effectuated by drug testing puts the MRO in an ethically untenable
position and begs the question of just what type of encounter the
indiscriminate drug test truly is.
Employers have two important reasons for wanting to
establish alcohol and other drug-free work-place programs. First and foremost,
employers are concerned about the health, safety, and well-being of their
employees. Second, alcohol and other drug abuse costs businesses billions
of dollars each year in increased medical claims, medical disability costs,
decreased productivity, injuries, theft, and absenteeism.
This legislation establishes comprehensive private
sector alcohol and other drug-free workplace programs. In the past, some
employers have considered drug testing in and of itself to be a complete
workplace substance abuse program. However, the existence of a substance
abuse testing program by itself will only serve to identify alcohol and
other drug abusers. Testing does nothing to educate, treat, or rehabilitate
alcohol and other drug abusing employees.
We know what it is: Law enforcement by proxy.
Consider the observations of D. Kim Broadwell in The
Evolution of Workplace Drug Testing: A Medical Review Officer’s Perspective
(The Journal of Law, Medicine, and Ethics, Vol.
22:3 Fall 1994, pp. 240-46.):
Ethical concerns about employee drug testing have
been voiced, particularly by occupational medicine physicians. Drug testing
programs potentially destroy mutual trust between the employee and the
employer, and punishment for behavior off the job—which may have no direct
influence regarding on-the-job performance—is not the environment most
workers would choose. Although created to protect, in practice, the role
of the physician acting as an MRO is unique to the degree that the doctor
is pitted against the employee. No physician-patient relationship is required
or suggested, contrart to customary medical practice. The accused is generally
contacted by telephone and not examined, and the MRO participates in labeling
as a drug user (and usually the firing of) an individual he or she never
sees. Issues of diagnosis, therapy, and rehabilitation are peripheral to
the intent of the contact. None of these factors fits the paradigm of ethical
practice of the healing arts, and many physicians feel unethically bound
by MRO requirements, which are forensic, not medical, in nature...
A 1997 monograph from the Journal of Medical Ethics
echoes the concerns:
Drug testing does not diagnose addiction
or impairment, and concerns persist about the ability of poorly trained
or motivated doctors to carry out the primary safeguard function of the
MRO—to prevent falsely positive test results. A zealous physician who,
for personal reasons, views his role as a drug enforcement officer may
not provide the employee much protection.
CONCLUSIONS: Workplace screening for drugs of abuse
raises many ethical issues. If screening is considered as being part of
medical practice with the involvement of occupational health physicians,
as suggested by the Faculty of Occupational Medicine, then the ethical
requirements of a normal medical consultation are fully applicable. The
employee's full and informed consent to the process must be obtained and
the employee should have an unfettered right of access to all the relevant
records and to the urine sample he/she has provided in the event that he/she
wishes to challenge the opinion expressed by the physician. If the process
is not part of medical practice then employees should have the same rights
as they would have if required to provide intimate body samples in the
course of a criminal investigation, given the potentially serious consequences
of an erroneous positive finding for their livelihood. (Ethical
aspects of workplace urine screening for drug abuse, Forrest, AR, Journal
of Medical Ethics, Vol. 23, No. 1, pp 12-17.)
It should be clear that the intended and actual function of
the MRO from the perspective of the testing vendor is that of the methodological
fig leaf, nothing more. The fact that issues “of diagnosis, therapy, and
rehabilitation are peripheral to the intent of the [MRO] contact” is actually
irrelevant, given the framing of legislation such as the Model Act hawked
by The Alliance and its auxiliary law enforcement brethren—for it is assumed
a priori that a positive drug test result means that therapy
and rehabilitation are necessary, with summary termination the consequence
for dissenters. As recounted elswhere in this thesis, “if you use illegal
drugs and claim to do so without adverse consequences, you are by definition
in Denial; your very dissent proves you to be an addict.” (see
Some closing observations: Again, while the term “alcohol”
is referred to repeatedly in this model legislation, there are no explicit
provisions in the Act for indiscriminate alcohol testing—nor any for tobacco.
And—broken record, broken record—such is because those are legal
substances. The fact that alcohol abuse and routine tobacco consumption
account for nearly all aggregate health, safety, and productivity losses
attributable to “drugs” is somehow ignored when it comes to mandatory “substance
abuse” surveillance, which only looks for marijuana, cocaine, amphetamine,
PCP, barbiturate, and opiates indulgence.
To summarize: Section M-210 (Policy Statement) the
Model Act declares, in (5) Substance abuse testing. “Employers
must implement substance abuse testing as part of any comprehensive drug-free
workplace program. Pre-employment, reasonable suspicion, medical fitness,
and post-accident testing would be required by a comprehensive drug-free
workplace program in compliance with this Act. Random drug testing is neither
prohibited nor mandated by this Act.”
A state enacting this proposed legislation would subsequently
be in the business of “certifying” private enterprises as “Drug-Free Workplaces.”
is but a short hop from there to requiring that private businesses
be “certified” should they “directly or indirectly” receive public funds
(recall from Chapter 1 41.USC.701, the federal
Act of 1988, which mandated that all businesses “directly or indirectly”
receiving federal funds have in place a documented Just-Say-No program).
Moreover, commercial drug testing vendors and their lobbyists would undoubtedly
make much use of adverse inference toward those firms that remained “uncertified.”
That such as this “Model Drug-Free Private Sector Workplace
Act” might be enacted at the state level through federal taxpayer-funded
abuse of the § 501(c)(3) charter would be an outrage. Recall from
the IRS regulations that one function of the § 501(c)(3) is the “defense
of human and civil rights secured by law.” The activities of The Alliance
represent an attempt to surreptitiously use the very federal government
charged with defending such rights to subvert them.
We might recall further how Representative
Gerald Solomon raged on in Congress not too long ago, angrily calling
for revocation of tax-exempt charters of non-profits “supporting drug legalization”
and demanding that financial supporters of such organizations be taxed
retroactively on their contributions.