Terms of Service and Membership Check box does not restrict continuation

It appears that the bug referenced in this link is still active 10 months later.
https://premium.wpmudev.org/forums/topic/terms-of-service-integration-with-membership

I am running membership with TOS and it is populating the TOS but the checkbox is not needed.
After I select my membership option, the TOS appears a 2nd time and this time it requires it on my create an account page.

How do we get this fixed?
Also I have supported enabled on another open issue.

Thx

Mike