A Citizen's Guide to Indiana

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SB 182 – Health Practitioner Advertising and Identification

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Sen. Leising has introduced SB 182 which basically requires a health care practitioner to disclose the nature of his or her licensure in any advertising and to wear a badge while providing direct health care that states their name and licensure. This applies to a “practitioner” which is defined as someone who holds a license, certificate, or permit regulated by a variety of regulatory boards (e.g. chiropractic, nursing, dentistry, medical licensing, optometry, podiatrist, pharmacy, psychiatry, psychology, physical therapy, audiology, athletic trainer).

It requires that, when advertising for health care services (not defined, I don’t believe), the practitioner must prominently identify in the advertisement the type of license held by the practitioner. It also provides that, with certain exceptions, when providing direct patient care, the practitioner must wear an identification badge. “Direct patient care” is defined as “health care that provides for the physical, diagnostic, emotional, or rehabilitation needs of a patient, or health care that involves examination, treatment, or preparation for diagnostic tests or procedures.” The badge must state the practitioner’s first and last name, the type of licensure using the name of the relevant profession, and – if applicable – the practitioner’s status as a student, intern, trainee, or resident. Exceptions to the badge requirements are permitted if it’s not clinically feasible (e.g. during surgery), where there is some concern for the practitioner’s safety (not stated – but I’m thinking having the last name on the badge while providing care to a violent criminal?), the relevant information is already posted on the door to the office, or if the practitioner has the information posted on the wall of their office.

Health care already feels like such an inscrutable maze, I guess I’m not optimistic that these additional bits of information will really make a dent in the challenges we face as health care consumers. It feels like drops of water in the ocean. Meanwhile this adds just a bit more bureaucracy to the system.

SB 143 – Composition of State Board of Education

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Sen. Zay has introduced SB 143 which would alter the composition of the State Board of Education. Currently, it is composed of the Superintendent of Public Instruction, eight members appointed by the governor, one appointed by the President pro tempore of the Senate, and one appointed by the Speaker of the House of Representatives. Three of the Governor appointees have to be at least nominally from another party. With the elected Superintendent of Public Instruction position being replaced by the Governor-appointed Secretary of Education position beginning in January 2021, that’s a lot of marbles in one basket.

SB 143 would give the Governor two appointees (plus the Secretary of Education). The Speaker of the House would get three, the President pro tempore would get three, and the minority leaders of the House and Senate would each get one. Under current law, six of the Governor’s eight appointees are required to have “professional experience in the field of education.” Under SB 143, six of the appointees would still be required to have professional experience in the field of education but the legislation does not specify how that requirement is to be coordinated among the appointing authorities. Also, the meaning “professional experience in the field of education” has been tweaked. The current definition says that means teacher, principal, superintendent, or assistant superintendent. The new law would add “an executive in the field of education.” I don’t known what that’s supposed to mean, but to my jaded eyes that screams “testing company executive” or “owner of a charter school management company.”

Diversifying the appointing authority for the State Board of Education makes sense. I don’t have strong feelings at the moment as to what might constitute the proper balance. As citizens, we should all be aware that the State has pretty thoroughly taken over education in Indiana and, with the Superintendent of Public Instruction set to no longer be an independently elected position, the power to set education policy will sit pretty firmly in the Governor’s office. Education represents something like 50% of the State’s budget. I don’t think it’s overstepping to suggest that a citizen’s vote for Governor or the General Assembly should mostly rise and fall on education policy.

SB 196 – Jail and Immigration Status

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Sen. Koch has introduced SB 196 imposing duties on prison superintendents and jail commanders to assist the federal government in enforcing immigration laws. It requires the person in charge of a jail, prison, correctional facility or other place of detention to “attempt to determine” a person’s residency status by asking the prisoner or by examining “relevant documents.” (Relevant documents are undefined.) If the person in charge of the detention facility is unable to make a determination, he or she is to check with  Immigration and Customs Enforcement  (ICE) and report the person’s presence to the Department of Homeland Security (DHS). (Oddly, this requirement is triggered only if the person in charge is unable to make a determination. I’m not sure if there is a reason why it’s not drafted to also require notification where the person in charge determines that the inmate is not here legally.)

If DHS requests a custodial interview, the detention facility is required to accommodate the request within 24 hours. If DHS notifies the detention facility that the inmate is the subject of a detainer, the person in charge of the detention facility (not DHS or ICE) is required to go to the local court and ask for a hearing concerning the detainer and, if the court determines that the inmate is the person who is the subject of a detainer, order the person held for an additional 48 hours.

The fiscal note does not address as potential local expenditures the costs of legal fees required to go to court with one of these petitions or the costs of Fourth Amendment lawsuits if it turns out that the federal detainers were not supported by probable cause. And often times they aren’t:

Federal courts agree that holding someone on a detainer after they have concluded their local or state custody constitutes a new arrest that must meet Fourth Amendment requirements. As discussed further below, most holds pursuant to ICE detainers do not satisfy the Fourth Amendment.

. . .

The Northern District of Illinois has ruled that detainers issued out of the Chicago Field Office (covering at least six states and sometimes more) because they exceed ICE’s own statutory arrest authority, although a request for a stay of the order revoking all the detainers has been filed, pending an appeal.  This holding so far only applies to the Chicago Field Office, but its analysis is national, so any jail holding people on ICE detainers is risking liability for that detention.

Local jails and sheriffs have been held liable for unlawful detention and violation of the detainee’s Fourth Amendment rights because of unlawful detention based on ICE holds. 8 Moreover, many jails have been held liable or forced to settle with U.S. citizens that they unlawfully held on immigration detainers.

(The memo I’m quoting here is a couple of years old and isn’t from a neutral source, so you can quibble with whether or how much it’s overstating the case, but the issues it raises and the cases it cites are real.)

I don’t want to get into the ways in which federal immigration law is problematic, and state law already requires that local government not interfere with federal enforcement of immigration law. That’s a legitimate policy choice. This, however, puts local jails in a bad spot if the federal government isn’t doing its job. Like I said, if the detainers are not based on probable cause, the local government might be on the hook for holding the inmate without legal authority to do so. A jail might defend on the basis that the state court issued a 48 hour holding order — but I’m not sure if that would be sufficient. The proposed legislation does not contemplate a court making a determination on the legal sufficiency of the detainer — just whether the inmate’s identity is correct. And there are going to be legal expenses associated with preparing a petition, going to court, and explaining the law to the judge. These expenses are imposed entirely on the person in charge of the correctional facility.

Seems to me that the better way to accommodate the federal government while not burdening local government is to notify the federal government of the inmate’s presence and leave it up to the feds to go to court to get the hold order. They’ll presumably have much better access than state or local government to the information supporting a probable cause determination.

Update: It occurred to me that, because the inmate’s liberty is at stake, in all likelihood, the County will also have to pay for the inmate to have a public defender if the inmate is unable to afford one — and that’s probably going to be a substantial percentage of the inmates in this situation.

SB 197 – Prohibiting State and Local Government Purchases from Huawei Technologies and ZTE Corporation

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Sen. Koch has introduced SB 197 which concerns “prohibited technology purchases.” It defines a “prohibited person” as “a person that has been designated as posing a national security threat to the integrity of communications networks or the 10 communications supply chain under 47 CFR 54.9 (as in effect on 11 January 1, 2020).” According to the fiscal note, the two companies that meet this criteria are Huawei Technologies and ZTE Corporation. Both are Chinese technology companies. The bill prohibits the purchase of any services or equipment from these companies, effective upon passage. It does not make any provision for contracts already in place. The fiscal note says that the bill will affect only “projects which do not receive federal funding, as federally-funded projects are currently being addressed by the 2019 National Defense Authorization Act.”

Both Huawei and ZTE are accused of allowing surveillance by the Chinese government through their products.

HB 1002 – Removing Student Testing as Component of Teacher Evaluations

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Rep. Cook has introduced HB 1002 which gets rid of the requirement that “objective measures of student achievement and growth” as a required component of teacher evaluations. This is similar to the subject matter of SB 59 which I mentioned a few days ago which would limit such “objective measures” to 5% of a teacher’s evaluation. I keep putting the “objective measures” in scare quotes because we’re not entirely sure what they are measuring. On top of that, the problem with using them as part of a teacher’s evaluation is that there are too many confounding variables. It’s very difficult to trust that higher or lower student test scores are a function of any given teacher’s performance. For example, such scores track very closely with household income.

 

SB 131 – National Motto in Each Classroom which must be at least 4″ x 15″

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Sen. Kruse is engaged in a bit of culture war nonsense with SB 131 which mandates that each school classroom and library display a framed picture or durable poster with “In God We Trust” and the U.S. and Indiana flags. The poster has to be 11″ x 17″, the “In God We Trust” has to be at least 4″ x 15″ and the flags each have to be at least 5″ x 5″. No funds are appropriated for this expense.

This is bush league stuff. We’ve got real problems.

 

Feeling that things are more dangerous these days

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Whenever there is an act of violence in my community, it’s pretty reliable that people express a belief that things are more dangerous these days. And, just reading national news and related commentary, I think it’s common to think that things are more dangerous these days. I don’t know what the statistics are locally, but I know that – despite how people may feel – violent crime is down over the last 20-30 years. “Using the FBI numbers, the violent crime rate fell 51% between 1993 and 2018. Using the BJS data, the rate fell 71% during that span.”

I think reasons we don’t feel safer include: 1) Nostalgia softens the rough edges of the past; 2) our brains are wired to amplify current concerns about danger; and 3) we’re exposed to more information — including bad news about violence — than we were in the past. On that last point, I don’t think our brains are wired to distinguish very well between reports of violence in the immediate vicinity and reports of violence that are more distant. In terms of how we feel reports of violence, near and far, just get added to one big bucket of anxiety. Intellectually, we know that there’s a difference, but I don’t know that our minds and bodies readily make that distinction on an emotional level.

 

 

SB 88 – Charter School Conflict of Interest

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Sen. Taylor has introduced SB 88 attempting to address conflicts of interest by charter school organizers. The issue is with these ostensibly public schools directing public money to themselves or their relatives. There is not a lot of transparency or oversight with these operations — we saw that with the Indiana Virtual School charter where little Daleville was theoretically providing oversight. One potential issue is self-dealing by charter schools — where they can do things like lease property from subsidiaries of the charter school operators. Karen Francisco outlined what the shell game can look like in Indiana.

SB 88 would prohibit a charter school organizer from entering into a contract with any person from which an officer or employee (or relative of an officer or employee) will receive compensation. It creates an exemption for contracts valued at under $1,000. This is certainly a start, but I’m not sure it goes far enough. For example, I’m not sure it covers the situation where the self-dealing arrangement goes three or four companies deep — e.g. the organizer rents at higher than market price from a nominally independent third party who then enters into an inflated maintenance contract with the organizer’s son.

Incidentally, this also helps illustrate why the Presidential candidates who try to distinguish between supporting for-profit and not-for-profit charter schools are offering an unhelpful distinction. I’m no happier if public schools receive less money and the public money goes through a non-profit charter school to a for-profit company owned by the charter school operator’s daughter.

SB 51 – Call Center Relocation to Foreign Countries

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Sen. Niezgodski has introduced SB 51 which would disqualify call center operators for grants if they relocate their operations to a foreign country and imposes a civil penalty on a call center operator receiving certain state grants if the operator doesn’t notify the Indiana Economic Development Commission 120 days before the relocation. It also requires that “all call center and customer service work” done for state agencies in the executive be performed entirely within the state of Indiana.

There are a number of problems with this legislation. First of all, I don’t see that call center or customer service work is defined anywhere. There is also an effort to carve out larger call centers by referencing aggregate hours worked by employees that I don’t think quite succeeds with what can be a surprisingly slippery drafting problem. Second, how much are we spending in state grant money to support call centers? Is it enough to make this legislation worth the effort? Third, why the narrow focus on call centers? Are these really the jobs that we want to make a particular priority in Indiana? I’m tempted to take issue with the foreign country provision, but there might be some Commerce Clause issues if this legislation was triggered by a call center moving to a different state within the U.S.

This feels like one of those bills that’s trying to address a very specific situation, but I don’t know the back story.

SB 58 and SB 59: ILEARN “Hold Harmless” Legislation

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Sen. Leising has introduced SB 58 which appears to be a reaction to the revelation that last year’s ILEARN test did not produce reliable metrics. Under this legislation, a school’s performance rating for 2018-2019 can’t be any lower than 2017-2018, “additional consequences” for school improvement may not be applied for the 2018-2019 school year, and ILEARN scores can’t be used for a teacher’s performance evaluation. “Additional consequences” has to do with provisions under IC 20-31-9 providing for escalating consequences for each year that a school is in the lowest performance category (e.g. state takeover or closure in the 4th year.) Note: I’m going off the digest with for the proposition that the “additional consequences” are paused. I can’t quite parse the language of the bill to reach the conclusion that the clock stops running for the 2018-2019 school year – my reading suggests that the 2017-2018 performance will be substituted unless the school wants the 2018-2019 performance to be applied. But the language is pretty dense, so I might be misreading something.

Sen. Leising has also introduced SB 59 which provides that ILEARN scores (and other “objective measures of student achievement and growth”) may not account for more than 5% of a teacher’s total performance evaluation. I should be a little tempered in my critique here – it’s an improvement on the status quo. That said, I would strongly argue that ILEARN is not an objective measure of student achievement or growth. Fact is, we don’t know what the hell it is measuring. Its metrics – which, lest we forget, cost the State $40 million – are unreliable. ILEARN suggests that West Lafayette, the 20th best STEM school in the nation, has 40% of its students lacking proficiency in math or English. If the test missed that badly in West Lafayette, it can’t be trusted in other schools either. Using this test as even 5% of a teacher’s evaluation is too much.  Furthermore, even if we had a standardized test that was a reliable measure of student growth and achievement, using them as a measure of teacher performance is problematic since there are too many confounding variables for us to mistake correlation for causation. Usually those test results end up being pretty well correlated with a student’s socioeconomic status.

Not a bad start, but seems like there is room for improvement here. I’m an enthusiastic amateur when it comes to education law – I’d love to see the opinions of people who know the ins and outs of this stuff.