Telehealth, post-pandemic: States face decisions on what to reimburse through Medicaid, as well as what to require of private insurers

Nebraska Sen. Tom Brewer represents a legislative district in the north central part of the state that stretches 300 miles long and 200 miles wide.

“There are only four locations with a hospital,” he says.

Miles and miles also separate a patient from the nearest provider in all kinds of health care areas and specialties; it’s a geographic and health care reality that his district shares with other rural areas in the Midwest.

The problem is not new, and telehealth has long been identified as a way to help close gaps in health care access. However, it had failed to gain widespread use until the COVID-19 public health emergency, which necessitated a rapid implementation and related policy changes (either temporary or permanent).

Since then, Brewer and other lawmakers have been looking at ways to sustain and expand telehealth for rural and urban constituencies alike.

What is telehealth?

Mei Kwong, executive director of the Center for Connected Health Policy, says it should not be thought of as a “service in and of itself; rather, it is a mode of health care delivery.” Within the broad definition of telehealth, too, there are distinct applications or modalities, such as the use of live video, “store and forward” or remote monitoring (see table for definitions).

FAIR Health, a nonprofit organization that tracks privately billed health insurance claims, reports that in January 2020, only 0.24 percent of all privately itemized claims included a telehealth component. By 2021, that figure had spiked to 7 percent.

As of November 2023, the rate of claims including a telehealth component was 3.5 percent in the Midwest and 5.1 percent nationally.

‘Didn’t sit right with me’

One factor impacting access to and the use of telehealth-based care: payment parity. In Nebraska, Sen. Brewer began hearing from constituents who were paying more for telehealth visits than in-person visits. That is because insurers were not required to reimburse providers at the same rates for virtual visits as in-person visits. Patients were left paying the difference.

“That didn’t sit right with me,” Brewer says. People wanted access to telehealth-based care, he adds, and health care professionals were willing to provide it.

Brewer introduced a payment-parity law in 2023, and LB 296 ultimately passed the Legislature with unanimous approval.

Under this new Nebraska law, the reimbursement rate for any telehealth service must be the same as for a comparable in-person health care service. LB 296 applies to any licensed provider who also offers “in-person services at a physical location in Nebraska or is employed by or holds medical staff privileges at a licensed facility” in the state.

As of late 2023, Illinois, Iowa, Minnesota and Nebraska were among the 24 U.S. states with payment-parity laws, according to the Center for Connected Health Policy.

In testimony last year to the U.S. Senate Finance Committee, Dr. Chad Ellimoottil, the medical director of virtual care at the University of Michigan, identified payment parity as a key component to sustaining the availability of telehealth services, post-pandemic.

The American Medical Association has said, too, that if compensation rates are lower for telehealth services, physicians may choose to stop offering them.

Another important state policy decision involves Medicaid coverage of telehealth.

In the Midwest, all states provide Medicaid reimbursement for certain modes of telehealth, but not necessarily all of them. For example, the Center for Connected Health Policy says that as of fall 2023, Medicaid programs in Kansas and Nebraska were paying for live-video services, but not store and forward (see table).

Efficacy of telehealth

For policymakers, the continuation of state-based Medicaid reimbursement for telehealth or the adoption of payment parity will depend in part on assurances that telehealth works.

“Despite the extraordinary amount of research produced over a short amount of time, gaps in knowledge remain,” noted authors of a November 2023 study.

That study, “Telehealth Outcomes and Impact on Care Delivery,” was done for the nonprofit, philanthropic California Health Care Foundation.

While acknowledging the many unknowns, the authors do point to promising outcomes in certain specialties where telehealth has been closely studied.

For example, a “preponderance of the evidence” shows that live-video services are just as effective as in-person care in treating mental health conditions, including attention deficit hyperactivity disorder, depression and post-traumatic stress disorder.

Additionally, hybrid care, a mix of telehealth and in-person services, appears to be just as effective as in-person care alone for patients suffering from rheumatoid arthritis or in need of reproductive health or behavioral health services.

Researchers noted, too, that live video and in-person visits resulted in the same amount of utilization of other health care services after an initial treatment in areas such as urology, infectious disease, diabetes and postsurgical services.

With states largely making telehealth expansion permanent for Medicaid, Kwong says, it may place pressure on the federal government to do the same for Medicare. Several telehealth expansions in this program are set to expire by year’s end. According to the U.S. Department of Health and Human Services, one in three rural adults is enrolled in Medicare.

The broadband connection

When the pandemic hit, Brewer says, his rural communities in Nebraska were ready for the shift to telehealth. His district had made good use of federal grants, as well as other public and private investments, to bring fiber optic cables and high-speed connectivity to its many small towns, farms and ranches.

In areas of the country or individual residences that still lack broadband, audio-only telehealth services remain an option.

Every state in the Midwest has modified its respective Medicaid plans to allow for the reimbursement of audio-only telehealth. Whether those changes are temporary or permanent, however, varies from state to state.

 

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Redistricting roundup for the 11-state Midwest: A February 2024 update

CSG Midwest tracks the redistricting process and related developments in each of the 11 states of the Midwestern Legislative Conference.

During the most recent redistricting cycle, it was most common for new congressional and state legislative district boundaries to be drawn and approved by the full state legislature, and then signed into law by the governor. This was the process used in Illinois, Indiana, Kansas (override of a gubernatorial in one instance), Nebraska, North Dakota and South Dakota.

However, there also was some notable variation this time around:

  • Michigan’s first-ever use of an independent, non-politician redistricting commission;
  • a drawing of the new maps by a panel of state judges in Minnesota;
  • the use of a seven-member redistricting commission (made up of elected officials) in Ohio; and
  • the significant role of the Wisconsin Supreme Court.

CSG Midwest first provided a regional roundup of redistricting in the summer of 2022. It most recently updated this page in February 2024 to include the impact of court rulings and/or legislative actions in Michigan, North Dakota and Wisconsin. 

Illinois: Census delay, deadline caused drawing of two separate maps

The once-a-decade redistricting task in Illinois was unique this time around in at least one respect. When it came to new state legislative districts, the General Assembly developed and passed, and the governor signed into law, two plans in a single year.

This extra step was due to a delay in the release of official U.S. Census data, along with language in the Illinois Constitution stipulating that the General Assembly complete state legislative districting by June 30 in the year following the census.

If this deadline had been missed, a bipartisan, eight-member commission would have taken over the process. The General Assembly’s first map, passed in May 2021, was based on population estimates. Later that year, a three-member federal panel of judges ruled that the legislative districts were unconstitutionally malapportioned.

But even before this October 2021 decision, legislators had passed a second map based on official census data (released in August of that year). This map also faced a legal challenge, on the grounds that it diluted the votes of minority groups and should have included more legislative districts with majority Latino or Black voters.

However, the constitutionality of the General Assembly’s second state legislative map was upheld in late 2021.

“The voluminous evidence submitted by the parties overwhelmingly establishes that the Illinois mapmakers were motivated principally by partisan political considerations [not race],” the three-member panel of federal judges concluded. Partisan gerrymandering falls beyond the purview of federal courts, the judges noted.

The General Assembly had no similar constitutional deadline for drawing new U.S. congressional districts. It approved this map in October, having to account for the loss of one seat due to reapportionment.

Indiana: More ‘communities of interest’ kept together

Indiana ran into a deadline problem of its own with the delayed release of census numbers. Its redistricting statute calls for congressional districts to be approved prior to adjournment of the General Assembly’s first session following the census. If the task is not done by this time, redistricting duties are turned over to a five-member legislative commission.

The General Assembly was ready to adjourn in April 2021, but did not have the necessary redistricting data in hand. So lawmakers held off official adjournment until the fall, when they could return to the Capitol to approve new maps.

Republican leaders in the House and Senate say the new maps reflect their goal of keeping more “communities of interest” together — for example, 32 counties are now wholly contained within one state House district (up from 26 under the previous map); 65 are contained in one state Senate district (up from 49); and 84 of the state’s 92 counties are in a single congressional district.

As in Illinois, Indiana’s plan was criticized for unduly favoring the party in charge of the redistricting process (Democrats in Illinois, Republicans in Indiana). 

The partisan breakdown of Indiana’s delegation in the U.S. House is not expected to change with the new maps, however — seven Republicans, two Democrats, according to FiveThirtyEight. 

Iowa: Nonpartisan staff draws maps; Legislature OKs with no changes

Iowa is one of three Midwestern states, along with Michigan and Ohio, that bans partisan gerrymandering. Since 1980, too, the nonpartisan Legislative Services Agency has steered the redistricting process, drawing new state legislative and congressional lines and presenting these maps to the full Legislature for an up-or-down vote.

If the LSA’s first plan is rejected, the agency prepares a second one for a legislative vote, again with no amendments allowed. Legislators can only make tweaks after the first two plans have been voted down and a third plan has been submitted.

Would Iowa’s approach hold during this round of redistricting, in a state where one party controls the legislature and governor’s office (Republican) and during a period of increased partisanship?

Yes.

During a special session in October 2021, legislators rejected a first LSA plan, citing concerns about the compactness of districts and population deviation. But later that same month, legislators gave near-unanimous approval to the second plan. Since Iowa first adopted a nonpartisan approach to redistricting, one of the LSA’s maps has always been approved without legislative amendment.

Kansas: Bipartisan support on one set of maps, override of veto on the other

A decade ago, the Kansas Legislature, though fully controlled by a single party (Republican), was not able to agree on new state legislative or congressional maps. As a result, a three-member panel of federal judges drew the political lines.

This time around, legislators reached enough consensus on both plans — getting the approval of Democratic Gov. Laura Kelly on the new state maps and overriding her veto of the congressional map. In March 2022, the Kansas House gave overwhelming approval to the state legislative maps, “a show of bipartisan unity” marked by “an ocean of backslapping, plaudits and more than one standing ovation,” The Topeka Capital-Journal reported. (One of the most controversial parts of the state maps turned out to be the new lines for State Board of Education, a move that caused some Democrats to oppose the final version.)

The Republican-led Legislature’s plan for Kansas’ four U.S. House seats was more controversial. Kelly criticized the new congressional lines for diluting the voting strength of minority communities and separating communities of interest — for example, carving Wyandotte County (part of the Kansas City area) into two congressional districts and placing parts of the city of Lawrence in a rural district.

The Kansas House and Senate quickly overrode her February 2022 veto, setting up a legal challenge based on claims of extreme partisan gerrymandering and racial discrimination. The Kansas Supreme Court, however, rejected these assertions. Race was not the predominant factor in drawing the districts, the justices concluded, and nothing in Kansas’ Constitution or statutes prevents partisan considerations in the redistricting process.

Michigan: Maps drawn for first time by independent commission

Michigan is the only state in the Midwest (and one of nine in the United States) that has put the redistricting process fully in the hands of an independent commission whose members cannot be legislators or other public officials.

This new process is the result of a constitutional amendment passed by voters in 2018. As part of this amendment, lobbyists, party officials, legislative staff and campaign workers are barred from serving on the commission.

The commissioners — four affiliated with the Democratic Party, four with the Republican Party, and five with no major-party affiliation — completed the state’s new political maps in December 2021. Researchers at the Princeton Gerrymandering Project concluded that Michigan’s new redistricting process produced maps that were “fair” to both parties — a grade of “A” on partisan fairness for the state House and U.S. House maps, and a “B” for the state Senate map. (Project researchers noted a “slight advantage” for Democrats with the state House and Senate maps, and no advantage for either party with the new congressional lines.)

Still, legal challenges followed. The League of Women Voters of Michigan — citing the state’s new constitutional requirement that no political party get a “disproportionate advantage” — claimed the new maps favored the Republican Party. The Michigan Supreme Court dismissed the case, however, noting that partisan fairness also must be weighed against other criteria, such as keeping “communities of interest” together in a single district.

Separately, two racial-discrimination lawsuits were filed in state and federal courts. The Michigan Supreme Court upheld the new maps in a February 2022 decision. Plaintiffs in that case had argued that because the new redistricting plans reduced the number of majority-minority districts (as compared to the old maps), the result would be an unlawful dilution of minority votes.

In late 2023, a U.S. District Court ruled that elections could not be held in 13 Detroit-area state House and Senate districts without a fix to the lines drawn and approved by the Michigan Independent Citizens Redistricting Commission. Those districts were drawn predominantly on the basis of race, the court ruled, and the commission did not show that such racial gerrymandering was needed to meet a “compelling interest” such as compliance with the federal Voting Rights Act.

The U.S. Supreme Court chose not to intervene in the case. As a result, new maps needed to be approved and in place in time for the 2024 primary and general elections.

Minnesota: Panel of state judges draws maps again due to legislative stalemate

At the time of the most recent drawing of the nation’s political maps, Minnesota had the only “split state legislature” in the Midwest, with Democrats controlling the House and Republicans the Senate. This power-sharing arrangement made a legislative stalemate over redistricting almost inevitable, in a state where the drawing of new lines by the state judicial branch has become commonplace.

As in recent cycles, the state Supreme Court appointed a panel of judges to oversee the process. The panel reviewed four separate proposed maps (including those submitted by the two major political parties) before adopting congressional and state legislative redistricting plans in February.

“We are not positioned to draw entirely new legislative districts, as the Legislature could choose to do,” the five-judge panel wrote, explaining the “restrained manner” in which it drew the new lines.

“Rather, we start with the existing districts, changing them as necessary to remedy the constitutional defect [caused by population shifts over the past 10 years] by applying politically neutral redistricting principles.”

By June 2022, close to 20 percent of the members of the Minnesota Legislature (39 state senators and representatives) had announced plans to retire at the end of the biennium. One reason for this high number: the redrawn political maps threw incumbents into new districts and/or into races against one another.

Nebraska: Changes reflect big shifts in population — rural to urban

Leading up to the most recent round of redistricting in Nebraska, a coalition of nonprofit groups announced plans to pursue a constitutional amendment creating an independent, non-politician commission similar to Michigan’s.

However, COVID-19-related restrictions ended the groups’ signature drive and ensured the Legislature would hold on to its redistricting responsibilities for at least one more cycle. Lawmakers reached agreement on the new maps during a special session held in September 2021. In part, the new plans had to account for a continuing shift in population from Nebraska’s rural areas to urban centers such as Lincoln and Omaha.

For instance, the state’s three most populous counties (Douglas, Sarpy and Lancaster) are now home to 56 percent of all Nebraska residents; that compares to 31 percent in 1950, according to the University of Nebraska-Omaha Center for Public Affairs Research.

Under the new maps, one of Nebraska’s largely rural state legislative districts was dissolved into neighboring ones, while a district was added in Sarpy County (part of the Omaha area). According to an analysis by two Nebraska-based mathematics professors, the new map for state legislative districts was malapportioned to favor rural areas, though within the state’s allowable population deviation of +/- 5 percent.

North Dakota: New maps tweak use of multi-member districts

North Dakota is one of two Midwestern states (along with South Dakota) with a single, statewide U.S. House district.

The redistricting process, then, focuses on drawing new state legislative maps, and one outcome from this cycle was an alteration of North Dakota’s use of multi-member districts. Typically, two at-large state representatives serve a single legislative district (with one senator representing the entire district).

But this time around, lawmakers approved a plan to create four single-member districts in two areas of the state with Native American reservations. They did so by creating sub-House districts in two separate legislative districts. Such a split helps prevent the votes of minority citizens from being diluted in a larger, multi-member district; in North Dakota, this change increases the chances of individuals from the Fort Berthold and Turtle Mountain reservations being elected to office.

A lawsuit filed in 2022 challenged the creation of these subdistricts as unconstitutional racial gerrymandering. In May, a three-judge federal panel declined the request for a preliminary injunction. “We conclude the plaintiffs are not likely to prevail,” the panel concluded.

In a second lawsuit, the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe contended that North Dakota’s new map unconstitutionally dilutes the strength of Native American voters. A U.S. District Court ruled in favor of the tribes in late 2023 and ordered that their preferred map be used instead. The decision only affects a few districts, but will give Native Americans a better opportunity to elect a second “representative of their choice.” The original map unlawfully packed Native American voters into a single subdistrict, the court ruled.

Ohio: New era of redistricting marked by tumult and court battles

Ohio entered a new era of redistricting this cycle as the result of voter-approved constitutional amendments from 2015 and 2018. Both of these measures were designed, in part, to prevent partisan gerrymandering and encourage the drawing of maps that garner bipartisan support.

Still, Ohio’s redistricting process has proven to be contentious. Under the 2015 law, a seven-member commission — the governor, secretary of state, state auditor and four legislative representatives from both parties — draws the lines for state legislative districts.

The incentive for approval of a bipartisan plan is this: A commission-drawn map with approval from members of both political parties is in place for 10 years; one without such bipartisan support must be replaced after only four years.

Still, the commission never passed a plan with support from its two Democratic members.

After the commission approved its first plan for new General Assembly districts in September 2021, three lawsuits soon followed, with the plaintiffs asserting that the new maps violated the state’s constitutional prohibition on partisan gerrymandering.

The state Supreme Court rejected the commission’s first map, and also invalidated three separate revised plans. All four commission-approved plans, the justices ruled, fell short of the state’s new “partisan fairness” standards.

Minus a court-approved plan, which map for General Assembly districts would be used for the 2022 election cycle? The answer came from a three-member panel of U.S. District Court judges. It ordered that the commission’s “second revised plan” be used for 2022 election cycle only. (Because of the drawn-out process, Ohio’s primary for state legislative races was moved from May to August.)

The commission adopted another General Assembly map in September 2023, and the state Supreme Court ruled that it can remain in place for the rest of the decade. “Bipartisan support for the September 2023 plan means that it is effective for the 2024-through-2030 election cycles,” the justices said.

Under the state’s 2018 constitutional amendment, the full General Assembly has the opportunity to draw new congressional lines. During the first stage of the process, any Assembly-approved plan must receive a three-fifths “yes” vote in the House and Senate, including support from at least half the members of each major political party. No such plan was passed during this stage.

Next, the Redistricting Commission is given a window of time to approve new congressional lines, but its plan must have bipartisan support. This did not occur either.

During the third stage, the General Assembly can approve a congressional map by a simple majority vote, but the plan then only remains in place for four years (rather than the full decade). A map did clear the General Assembly along partisan lines, but it was subsequently declared unconstitutional by the state Supreme Court for being “infused with undue partisan bias.” The Redistricting Commission then passed a new congressional map, which was used during the 2022 election cycle that included races for Ohio’s 15 U.S. House districts.

The Ohio Supreme Court ordered the drawing of new congressional maps for the 2024 election cycle. However, the groups challenging these maps subsequently moved to dismiss their lawsuits. Attention now turns to this question: Will Ohio voters overhaul the redistricting process? A ballot initiative is in the works to hand over map-making duties to an independent, citizen-led commission (similar to the model now used in Michigan). Supporters of this proposed constitutional change want it on the November 2024 ballot.

South Dakota: Though small in numbers, Democrats play key role in final map

In South Dakota, Republicans during the 2021-2022 biennium held close to 90 percent of the state’s legislative seats — the most lopsided partisan advantage in the Midwest. But seven Democratic “yes” votes in the House ultimately played a key role in getting a redistricting plan approved and to the desk of Republican Gov. Kristi Noem.

According to the (Sioux Falls) Argus Leader, the House and Senate developed competing plans during this redistricting cycle, and disagreements emerged among moderate and conservative Republicans as they worked to draw new lines that reflected a large shift in population over the past decade from rural areas to Sioux Falls and Rapid City.

The Legislature met in special session in November 2021 to approve a new map. House and Senate leaders sought to reach a compromise between their competing plans, but many House Republicans ultimately voted against the Senate-approved map. “For a faction of conservatives in the Legislature, the bulk being members of the House, the [Senate] map is seen as an attempt to undermine the ability of far-right conservatives from winning elections in parts of South Dakota like Brown County, the Sioux Falls area and Rapid City,” the Argus Leader reported.

The Senate’s version passed 37-31 in the House, thanks to the seven votes of Democrats. Noem signed the redistricting bill only weeks ahead of a constitutional deadline of Dec. 1, when the responsibility of drawing new lines would have been turned over to the South Dakota Supreme Court.

Wisconsin: Process led by state supreme court; nation’s top court also weighs in

Along with Minnesota, Wisconsin was the other Midwestern state where a standoff over new political maps was expected. Republicans control the Assembly and Senate, but unlike in Kansas, they did not have enough votes to override a gubernatorial veto.

Democratic Gov. Tony Evers rejected both sets of maps in November 2021. In the ensuing months, the supreme courts of both Wisconsin and the United States got involved. Justices of the state Supreme Court decided not to craft their own maps, but to instead choose from plans brought forward by the governor, Legislature and others.

The court used the following criteria to guide its selections: sets of maps that make minimal changes to the existing lines while making the necessary adjustments to account for population changes and state and federal redistricting standards.

In March, in a 4-3 decision, the court selected Evers’ two plans. However, later that same month, the U.S. Supreme Court ruled that the Wisconsin justices had erred in accepting the governor’s state legislative map. His map had added a majority-minority district. According to the ruling, there was not sufficient evidence (using the judicial standard of “strict scrutiny”) to justify race-based districting as being necessary to comply with the federal Voting Rights Act.

The Wisconsin Supreme Court then reconsidered the competing proposals, and in April, it chose the plan of the Republican-led Legislature.

But in late 2023, the state’s highest court rejected the state legislative map, on the grounds that it violated a constitutional provision requiring each Assembly and Senate district to be a “contiguous territory.” Because of many instances in which different parts of a single district are not physically connected, the court said, a new legislative map for the entire state is needed.

In the wake of this December 2023 decision, several groups submitted proposed maps to the court for consideration. Justices laid out several criteria that would guide their decision on which map to use; one is to avoid the use of any plan “designed to advantage one political party over another.”

Then came a another twist in February: The Republican-led Legislature approved a plan previously submitted to the court by Democratic Gov. Tony Evers. This move was made to prevent the state Supreme Court from selecting a proposal that might be more politically advantageous to Democrats, according to the Wisconsin State Journal. Evers signed the bill (SB 488).

 

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CSG Midwest helps bring together Michigan, Ontario lawmakers for legislative exchange

In two recent legislative exchanges, members of the Ontario and Michigan legislatures have had the opportunity to deepen binational relations while learning about the legislative process in a neighboring state or province.

The Council of State Governments’ Midwestern Legislative Conference helped facilitate the most recent exchange. Led by Ontario Speaker Ted Arnott, a delegation of members of the Provincial Parliament traveled to Lansing in February for a series of meetings, including with Michigan Speaker of the House Joe Tate, Senate Majority Leader Winnie Brinks and Senate Minority Leader Aric Nesbitt.

The Ontario delegation also sat in on legislative sessions and attended the Michigan Senate Transportation and Infrastructure Committee meeting, which included an update on the Gordie Howe International Bridge project. Once complete, the bridge will provide another binational crossing in the Detroit-Windsor region.

CSG Midwest staff worked with the offices of Speaker Tate, Michigan Rep. Amos O’Neal and Michigan Sen. Roger Victory (the MLC’s immediate past chair), as well as the Ontario Legislative Protocol Office, on the event.

In late 2023, a delegation of Michigan legislators led by Speaker Tate traveled to the Legislative Assembly of Ontario in Toronto.

About the MLC

The MLC is a nonpartisan association of all legislators representing 11 states (Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Nebraska, North Dakota, Ohio, South Dakota and Wisconsin) and the Canadian province of Saskatchewan. The provinces of Alberta, Manitoba and Ontario are MLC affiliate members.

The MLC’s Midwest-Canada Relations Committee provides a regular forum for cross-border policy dialogue and collaboration among legislators from the region’s 11 states and four provinces. The committee will next meet during the MLC’s 78th Annual Meeting on July 21-24 in Columbus, Ohio.

Pictured at the Michigan Capitol, from left to right: Michigan Rep. Amos O’Neal; Eric Rennie, manager of Protocol and Visitor Services, Legislative Assembly of Ontario; Rachel Nauta, executive assistant, Office of the Speaker of the Legislative Assembly of Ontario; Ontario MPP Bobbi Ann Brady; Tina Gates, constituency assistant for MPP Brady; Michigan Sen. Roger Victory, MLC immediate past chair; Ontario MPP Ernie Hardeman; Lisa Arnott, spouse of the Hon. Ted Arnott; Ontario Speaker of the Legislative Assembly Ted Arnott; Rachael Johnston, district director for Sen. Victory; Mitch Arvidson, CSG Midwest staff liaison for the MLC Midwest-Canada Relations Committee; and Martin Johnston, legislative director for Sen. Victory.

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CSG Midwest provides overview of trends in civil asset forfeiture laws to Kansas Legislature

At the request of the Kansas Legislature’s Special Committee on Civil Asset Forfeiture Reform, CSG Midwest staff provided testimony in December detailing recent statutory changes across this region.

The state-by-state overview includes several examples of new laws that:

  • raise the standard of proof in forfeiture cases;
  • add new protections and due process rights, particularly for “innocent property owners”;
  • require a conviction in related criminal cases in order for property to be forfeited;
  • mandate more public disclosure and reporting by law enforcement; and
  • restrict the use of civil asset forfeiture proceeds.

PowerPoint of CSG Midwest testimony to Kansas Legislature »

Throughout the year, CSG Midwest provides committee testimony, in-state policy and professional development training, and individualized research assistance to legislators as part of its suite of products and services for the Midwestern Legislative Conference.

 

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Connect with CSG: Visits to Midwest’s state capitols in early 2024

The Council of State Governments is visiting state capitols across the Midwest in early 2024 to discuss CSG’s programs and services with the region’s legislators, other policy leaders and staff. The following dates are set; please reach out via email to the CSG Midwest staff listed below if you would like to set up a time to meet in person:

• Jan. 23-24: Indiana (Derek Cantù)
• Jan. 24-25: South Dakota (Jon Davis)
• Jan. 30-31: Iowa (Derek Cantù)
• Feb. 7-8: Kansas (Laura Kliewer)
• Feb. 7-8: Nebraska (Tim Anderson)
• Feb. 13-14: Wisconsin (Jon Davis)
• April 17-18: Illinois (Mitch Arvidson)

Dates for this year’s annual visits to Michigan (Laura Kliewer), Minnesota (Rebecca Leis) and Ohio (Amanda Seidel) are not yet set. North Dakota is not in session in 2024.

CSG is a region-based, national organization that promotes excellence in state government. CSG fosters the interstate exchange of insights and ideas to help state officials shape public policy; it offers unparalleled regional, national and international opportunities to network, develop leaders, collaborate and create problem-solving partnerships.

Much of the organization’s work for legislators in this region is done through CSG Midwest’s support of the bipartisan, binational Midwestern Legislative Conference.

CSG Midwest’s products and services include:

CSG Midwest also provides secretariat services and support to the Great Lakes-St. Lawrence Legislative Caucus and the Midwest Interstate Passenger Rail Commission.

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Should deception be allowed in police interrogation of juveniles? The question is being raised in legislatures; two Midwest states ban the practice

Some states in the Midwest, and across the country, are re-evaluating whether law enforcement officials should be allowed to purposely present false information to detained minors during an interrogation in order to, for example, solicit a “confession.”

“ ‘Don’t lie to children’ is a powerful message,’ ” says Steven Drizin, a clinical professor of law at Northwestern University and co-director of the Center on Wrongful Convictions. “Children, even more so than adults, are deferential to authority figures. And that is especially so in the interrogation room.”

According to the Innocence Project, among cases that ended in exoneration between 1989 and 2020 due to DNA testing, 29 percent involved a false confession. Thirty-one percent of the false confessors were 18 years old or younger at the time of arrest.

“Deceptive interrogation tactics lead to false confessions and injustice for both the persons who falsely confess as well as the victims of the crime because the true assailant is not brought to justice,” Nebraska Sen. John Cavanaugh says.

He sponsored LB 135 in 2023, a year in which “anti-deception” measures were introduced in Nebraska and three other Midwestern legislatures (see map).

Indiana: No false facts, notify parent/guardian

Passed unanimously by the Indiana General Assembly, SB 415 includes two main provisions involving the interrogation of juveniles.

First, it aims to stop law enforcement and school resource officers from knowingly offering false facts about evidence or making false statements about possible leniency to detained individuals younger than 18 years old. Statements, including confessions, made by a young person under these circumstances are now inadmissible in criminal or juvenile proceedings against the person.

Second, SB 415 requires law enforcement to make a “reasonable attempt” to notify a child’s parent, guardian or emergency contact when the young person has been arrested or taken into custody for a crime committed at a school or at a school-sponsored activity.

There are certain exceptions to this second requirement — for example, if the juvenile is emancipated, or if a medical emergency or student safety are involved.

“I don’t believe that law enforcement frequently engages in providing false information to children,” Sen. Rodney Pol said following the passage of his bill. “Yet any time it does happen, [it’s] harmful to children, their future, their families, and the justice system. … This bill seeks to stop those confessions and build more trust.”

At least two other like-minded bills were introduced this year in Midwestern legislatures: Michigan’s HB 4436 and Nebraska’s LB 135. Cavanaugh says his measure remains alive for the 2024 session. In Minnesota, HF 2319/SF 2495 would have made admissions, confessions or statements inadmissible in all instances where law enforcement uses deceptive tactics — no matter the age of the person being interrogated.

In all three states, these bills did not advance out of committee in 2023.

Illinois: No confessions via ‘knowing deception’

According to Drizin, Indiana joined eight other U.S. states that have changed their laws in recent years to prevent intentionally deceptive tactics by law enforcement when interrogating minors. The first state to pass such a law was Illinois. The final version of SB 2122, signed into law in 2021, received unanimous approval in the House and Senate.

Under the law, a confession by a juvenile, whether oral or written, is inadmissible in a criminal proceeding in most circumstances if it was “procured through the knowing use of deception.”

“This is not only a criminal justice reform bill that has bipartisan sponsorship support but, equally important, has strong support from our law enforcement partners,” Rep. Justin Slaughter, the bill’s chief sponsor, said on the House floor as SB 2122 moved through the Illinois General Assembly.

“As it relates to prosecutors proving the voluntariness of confessions, we lowered the burden-of-proof standard to make that easier for them.

“Secondly, we limited what qualifies as an inadmissible statement. We wanted to clarify that a statement made by the minor that incriminates someone else would still be admissible, even if deception was used.”

At the time, Illinois Rep. Curtis Tarver said these new protections for young people should also be extended to adults with limited cognitive abilities, arguing that this population is just as vulnerable to deceptive coercion.

“I don’t know that a 35-year-old who is essentially functioning with a mindset of a 14-year-old should have deception used on him or her in any manner that’s different because they’re not 18 or under,” he said.

Two years later, Tarver’s HB 3253 was signed into law. It takes effect in 2024 and bars the use of deceptive tactics in interrogations of individuals of any age with a “severe or profound intellectual disability.”

Miranda rights: Clear language for children

Along with these anti-deception measures, Drizin says clearer explanations to young people of their Miranda rights can help avoid miscommunication with law enforcement. Children and adolescents have a harder time than adults in understanding and exercising these rights than adults, he adds, especially under stressful conditions.

“Making the language of the rights more simple and understandable [could help], or requiring that children explain back to law enforcement officers what they understand after they’re given their rights,” he says.

In states such as Maryland, California, and Washington, Drizin notes, a consultation with an attorney is required before minors can waive their Miranda rights.

In 2016, Illinois (SB 2370) began requiring that an attorney be present for an interrogation of individuals 15 and younger in murder or sex-offense cases, that interrogations of juveniles be videotaped, and that officers use a simpler version of the Miranda warning in interactions with young people.

Officers must now say this to young people: “You have the right to get help from a lawyer; if you cannot pay for a lawyer, the court will get you one for free.”

They must then ask the juvenile two questions: “Do you want to have a lawyer?” and “Do you want to talk to me?”

Without the use of this language, statements made by the juvenile become inadmissible.


EXAMPLES OF STATE LAWS TO PROTECT YOUNG PEOPLE DURING INTERACTIONS WITH POLICE
  • Scales of justice.Prohibit confessions or admissions from being used against a child under a certain age
  • Establish a right for minors, which cannot be waived, to consult with legal counsel prior to interrogation
  • Require interrogations to be electronically or video recorded
  • Bar law enforcement from knowingly using deception
  • Require the presence of a parent/guardian or attorney
  • Require the use of Miranda warnings that help children better understand their rights

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Capital Closeup: In the Midwest, every state constitution has a ‘single subject’ rule, which was at the center of two recent cases in Nebraska and North Dakota

The language in state constitutions is sometimes as old as the documents themselves: No bill or law shall “embrace” or “contain” more than a single subject.

Every state in the Midwest, and 43 of the 50 U.S. states, has some version of this single-subject rule, a constitutional provision adopted by states to prevent legislative mischief and “logrolling” and to control the powers of special interests, says David Schultz, a political science professor at Hamline University who also teaches law at the University of Minnesota.

“It remains relevant as a provision that can be used to maintain transparency and accountability,” he says.

But is it being used?

That depends on the state. In Minnesota, Schultz says, the single-subject rule has been “de facto dead” for a quarter-century. However, two closely watched cases in the Midwest in 2023 were based on claims that state legislatures had violated the single-subject rule — one, a challenge to a new law on abortion and gender-affirming care in Nebraska; and the second, a Supreme Court ruling in North Dakota that struck down an omnibus bill (mostly) on state government operations and spending.

Nebraska’s ‘Christmas tree’ session, single-subject case

The lawsuit in Nebraska was filed near the end of an unusual 2023 session in that state. First, there was an extended filibuster from opponents of proposals to outlaw most abortions after 12 weeks of pregnancy and to ban gender-transition surgeries for individuals 18 and under. The response to this filibuster, and its delaying of action on other measures, was for legislators to adopt a “Christmas tree” approach: package provisions from different bills into larger, omnibus bills.

Nebraska’s LB 574 was amended during session to pair the prohibitions on abortion and transgender care (they originally were separate bills); after being signed into law, this measure was challenged over this constitutional language in Nebraska:

“No bill shall contain more than one subject.”

In August, a state District Court upheld the Legislature’s actions, saying the two provisions in LB 574 “relate to health care.” The court also noted that Nebraska’s judicial branch has historically been “circumspect about acting as a super-parliamentarian.” On the single-subject rule, this has meant that so long as a bill’s provisions fall under some “general object” (health care, in this instance), the measure gets upheld.

Court decision in North Dakota necessitates special session

Near the end of their 2023 regular session, North Dakota legislators passed SB 2015, which funded certain operations in state government but also changed composition of the North Dakota Public Employees’ Retirement System Board of Trustees. The number of members was changed from nine to 11, and the number of legislators on it was increased from two to four.

The board challenged this legislative action on several grounds, including violation of North Dakota’s single-subject rule:

“No bill may embrace more than one subject, which must be expressed in its title.”

In fall 2023, the North Dakota Supreme Court ruled that SB 2015 violated this rule by embracing “multiple distinct subjects extraneous and not germane to even the impermissibly broad topic of state government operations” — grants for public broadcasting, fertilizer-development incentives, penalties for drug trafficking that lead to injury or death, etc.

The justices noted, too, that the legislature had earlier in the session voted down a stand-alone measure seeking a change in composition of the retirement board.

The court’s decision struck down SB 2015 in its entirety. To avoid a shutdown of the government services funded in the bill, legislators came back to Bismarck for an October special session, during which they approved 14 separate measures, including one changing composition of the retirement board.

North Dakota Rep. Claire Cory says the court’s decision caught her and other lawmakers by surprise because seemingly similar Office of Management and Budget bills had been passed in previous sessions.

“My first session [in office], it was fine; in other sessions, it was fine,” she notes. “This time, it was not.”

The difference was that this year’s measure prompted a legal challenge, namely because of the changes to the retirement board.

‘Good idea in principle … Hard to operationalize’

According to Columbia Law School professor Richard Briffault, courts, on balance, have shown deference to legislatures and often rejected lawsuits based on the single-subject rule. However, there have been notable exceptions, including decisions in recent decades that invalidated state laws on guns, abortion, tort reform and immigration.

“The ultimate problem is the lack of definition of ‘single subject,’ “Briffault says. “Courts can read that word ‘subject’ broadly or they can read it narrowly. There is no real guidance on this, and it’s not clear to me how there really could be.

“Where that leaves us is a good idea in principle, but one that is so hard to operationalize, and may turn out to backfire in practice.”

One potential problem, he adds, is that it leaves open the possibility of “outcome-driven decisions” by judges — overturn a legislative action they don’t like by applying a narrow interpretation of “single subject,” or uphold a law by taking a broader view.

Second, the functioning of legislatures may suffer under a narrowly interpreted single-subject rule.

“As we see with the increasing difficulties of Congress getting anything done, we want to make sure there is some room for compromise,” Briffault says. “Part of that may involve stapling unrelated things together to get a majority to get things through. It may be the way deals have to get done.”

‘Not fair to voters’

Though every state in the Midwest has “single subject” constitutional language, it doesn’t necessarily apply to citizen-initiated ballot measures (see map).

Cory says this can create a dilemma for voters when they are asked to decide the fate of one proposal with multiple, unrelated provisions in it. The North Dakota legislator points to a proposed constitutional amendment from 2020 in her home state as a case in point. It called for North Dakota to adopt ranked-choice voting as well as an independent redistricting commission. Also in that same measure was language to improve the overseas voting process for members of the military.

The amendment never made it to state ballots (it was blocked by the courts for a reason other than single subject), but Cory believes it’s an example of the potential problem of having distinct policy changes being included in a single ballot initiative: A person may have supported more help for overseas voters, for example, but not wanted ranked-choice voting.

“We’ve seen ballot initiatives with multiple subjects that would change the [North Dakota] Constitution in several ways, but then supporters campaign on just one aspect of it,” Cory says. “That’s not fair to voters.”

This year, she served as one of the co-sponsors of a measure that would, in part, apply the single-subject rule to citizen-initiated ballot measures in North Dakota. SCR 4013 will go before voters in November 2024.

In states where the single-subject rule does apply to both legislative actions and citizen-initiated measures, one question for the courts is whether the same standard should apply. Three years ago, a proposal to legalize medical cannabis in Nebraska was kept off ballots by the state Supreme Court on the grounds that it violated the single-subject rule by including sections on cultivation, use, possession, health insurance and more.

Judges in that state have said that a stricter single-subject standard should be applied to citizen-initiated ballot measures than to bills coming out of the Unicameral Legislature.

Columbia Law School Professor Richard Briffault says it makes sense to have such a varying standard.

“The case [for single subject] is stronger with ballot propositions, and that’s because ballot propositions aren’t amendable by the voters, whereas with legislatures, provisions always can be taken out.”

Capital Closeup is an ongoing series of articles from CSG Midwest that focus on institutional issues in state governments and legislatures.

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2023 MLC Chair’s Initiative | Food Security: Feeding the Future

The Midwest is known globally as the U.S. region that feeds the world.

But how can state policy serve as a catalyst for farmers to be able to feed their neighbors, especially those individuals living in food-insecure households?

food securityOne part of the answer can be the creation and funding of programs that build stronger links between in-state farmers and food banks.

Michigan has the oldest farm-to-food-bank program in the nation, and states such as Minnesota (Farm to Food Shelf) and Ohio (the Agricultural Clearance Program) have these initiatives as well. Now, as the result of this year’s HB 2879, Illinois is joining these states.

“Establishing this kind of program has been on our radar for many years, and it was a [U.S. Department of Agriculture] grant that allowed us to show that it could work,” explains Steve Ericson, executive director of Feeding Illinois, the state’s association of food banks.

“We created pilot programs and model [agreements] with farmers to start building out those relationships, and that helped us convince the state.”

During the two years of the USDA pilot program, nearly 2.5 million pounds of food were donated by Illinois farmers. Legislators have now appropriated $2 million to expand the reach of the program, which will require a dollar-for-dollar match from food banks. These state dollars will help farmers use the food banks as secondary markets for “excess” or “surplus” products that otherwise would have gone to waste.

“To get more food, we’re going to have to pay something for it,” Ericson says. “We can’t expect farmers just to continually give us everything. We needed to find a way to meet in the middle.”

That “middle” will be reimbursing Illinois farmers for the expense of harvesting, packaging and transporting the food (their picking and pack-out costs).

This kind of “surplus purchasing” is one acquisition model commonly used in farm-to-food-bank programs; another is to negotiate prices and enter into pre-season agreements with participating farmers, according to a University of Illinois study done for Feeding Illinois. Some states, including Iowa, reimburse farmers for their donations to food banks and pantries via a tax credit.

Big funding boost in Michigan

This year, Michigan legislators deepened the state’s commitment to the long-standing Michigan Agricultural Surplus System; the new budget appropriates $12 million for the program, compared to $2 million a year earlier.

Under this program, Michigan’s Food Bank Council uses a state grant to purchase fresh, local produce that is of high quality but “cosmetically challenged” (also sometimes called an “ugly”). The council’s executive director, Phil Knight, says the program also allows for the acquisition of eggs and dairy. The council distributes the purchased products among Michigan’s seven food banks, using a formula based on the number of people living in poverty in each food-bank territory.

Michigan Sen. Roger Victory says another role for states is to invest in infrastructure (cold storage, local processing, etc.). In his home state, for example, state grants are going to build facilities that can store and freeze the fresh fruits and vegetables grown in the spring, summer and fall months, but are needed by local families year-round. In Illinois, this year’s HB 2879 includes grant funding for capital projects that build the capacity to store fresh food and transport it to underserved communities.

Michigan Sen. Roger Victory chose “Food Security: Feeding the Future” as his CSG Midwestern Legislative Conference Chair’s Initiative for 2023. CSG Midwest produced a series of articles, policy research and interstate sessions for legislators in support of this initiative.

 

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Legislative Tracker: Overview of Laws Passed in Midwest to Address Teacher Shortages (2023)

Across the 11-state Midwest, legislatures considered bills in 2023 that aim to address teacher shortages. The table on this page lists legislation signed into law over the past year. Among the policies being pursued under these new laws:

  • changes to teacher licensure requirements;
  • alternative pathways to licensure;
  • new financial assistance for new and veteran teachers, and;
  • modifications in the requirements for substitute teachers

CSG Midwest is tracking teacher-shortage measures in state legislatures as part of its support of the Midwestern Legislative Conference Education and Workforce Development Committee. It will continue to do so throughout the biennium.

The goal of this tracker is to identify and list all relevant new laws. If you believe a new law from 2023 should be added to this tracker, please contact Derek Cantù, CSG Midwest’s lead staff person for the Midwestern Legislative Conference Education & Workforce Development Committee.

The creation of a legislative tracker for teacher-shortage legislation in 2024 is coming soon.

The post Legislative Tracker: Overview of Laws Passed in Midwest to Address Teacher Shortages (2023) appeared first on CSG Midwest.

Question of the Month | December 2023 | Civil Forfeiture

Over the past decade, every state in this region has changed its laws on civil asset forfeiture, a process that allows for the seizure and permanent taking of property that is related to a criminal offense. In some states, those changes have included adding some kind of criminal-conviction requirement for the property to be subject to forfeiture.

Without such language, the process in most states is unrelated to outcomes in a criminal case. That’s because the property, not an individual, is the subject of the case in a civil proceeding. The standard of proof in these proceedings is lower than “beyond a reasonable doubt,” with one of two standards applied in the Midwestern states: “preponderance of the evidence” or “clear and convincing” (see map).

The addition of a criminal-conviction requirement has been part of a broader trend in legislatures that aim to better protect property owners. In the Midwest, Iowa, Michigan, Minnesota, North Dakota, Ohio and Wisconsin are among the states where such a prerequisite has been added to statute.

However, this criminal-conviction requirement sometimes only applies in certain types of forfeiture actions. For example, one approach is for states to require a criminal conviction only in cases involving property valued at a certain statutorily defined amount: under $5,000 in Iowa (SF 446 of 2017); $50,000 or under in Michigan (SB 2, HB 4001 and HB 4002 of 2019), and under $15,000 in Ohio (this was the amount set under HF 347 in 2017; the threshold changes based on inflation).

The Institute of Justice, which has backed changes to state civil asset forfeiture laws, says these criminal-conviction requirements still leave many property owners vulnerable. First, the institute notes, the burden can be on the owner to take legal action and contest the forfeiture; second, the state requirement often is satisfied by the conviction of any person related to the underlying criminal activity — not necessarily the property owner. As a result, an “innocent owner” still risks having his or property taken.

The criminal-conviction requirement is one example of how legislatures recently have altered the rules of civil asset forfeiture, but kept it as a tool for law enforcement. Other changes have:

  • Raised the standard of proof for property to be subject to forfeiture — Over the past decade, Iowa, Michigan, North Dakota and Ohio are among the states where the standard has been raised to “clear and convincing evidence.”
  • Added protections for “innocent owners” — An innocent owner is a person who did not know of or consent to the illegal activity connected to the property. As part of the civil asset forfeiture process, states provide a mechanism for these “innocent owners” to get back the confiscated property. Legislatures in states such as Iowa and Wisconsin (SB 61 of 2018) now make the government bear the burden of proof, rather than the owner having to prove his or her innocence.

States also have placed new reporting requirements on law enforcement and changed how proceeds from the sale of forfeited property can be used; for example, in Wisconsin, money now goes to the state’s Common School Fund.

Nebraska is one of four U.S. states that has abolished civil asset forfeiture (LB 1106 of 2016).

Question of the Month highlights an inquiry sent to the CSG Midwest Information Help Line, an information-request service for legislators and other state and provincial officials from the region.

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