Time to Do the Right Thing

Today, Equality Virginia, the AARP, the AAUP, the Virginia Education Association, the Virginia Governmental Employees Association, the Virginia AFL-CIO, and the Virginia Coalition of Latino Organizations stood together in support of SB 66, a bill that would, for the first time, codify protections against discrimination for Virginia's hard-working and underpaid state employees.

In 1970, Governor Linwood Holton established a tradition that Virginia chief executives followed until this year; his first official act as Governor was the issuance of an executive order promising state employees equal opportunity and protection from discrimination in the workplace.

35 years later, Governor Warner concluded his term by signing an executive order extending this protection to discrimination based on sexual orientation -- a promise of opportunity continued in Governor Kaine’s first executive order on Equal Opportunity issued the day he was sworn in as Virginia’s 70th Governor – a promise also extended by Governor Kaine’s order to Virginia’s veterans.

Despite this long history of executive action, the Virginia legislature has never acted to incorporate in the Code of Virginia an explicit and comprehensive ban on discrimination in public employment. And, as then Attorney General McDonnell said in an opinion he issued in 2006, the legislature's failure to act deprives the Governor of the authority to extend anti-discrimination policies to Virginia's gay, lesbian, bi-sexual or transgender employees by executive order.

It is past time for the Virginia legislature to make the Commonwealth’s equal opportunity policy clear and applicable equally to all public employees.

No state employee should have reason to doubt Virginia's commitment to equal opportunity in employment for all regardless of race, color, religion, national origin, sex, pregnancy, childbirth or related conditions, age, marital status, disability, sexual orientation, or veteran status.

Today, eight members of the Senate General Laws Committee voted to report a bill that codifies past executive actions and makes equal opportunity a matter of legislative enactment.

Much has been made of the fact that this bill would include sexual orientation in the legislature's statement of the Commonwealth’s nondiscrimination policy.

Protecting Virginia’s gay, lesbian, bi-sexual and transgender public employees from discrimination is not a radical idea.

Virginia is far behind private sector employers in adopting such a nondiscrimination policy. Top employers protect their workers from discrimination based on sexual orientation, because it simply makes good business sense.

All of Virginia’s top ten largest private employers have sexual orientation protections in their non-discrimination policies:
• Wal-Mart
• Northrop Grumman Newport News
• Food Lion
• Sentara
• Inova Fairfax Hospital
• Science Applications International (SAIC)
• Booz Allen Hamilton
• Target
• UPS

30 states now have laws and ordinances that ban discrimination by all employers (public and private) based on sexual orientation; 12 and the District of Columbia include gender identity. Such nondiscrimination laws now cover over half of the United States population.

A poll of Virginia voters conducted by a bi-partisan polling team has found that, even among Virginia voters who would vote for a marriage amendment, 86% said gays and lesbians should have the right to work for the government.

It is time for the Virginia General Assembly to reject the insubstantial, biased, and fear based arguments against this legislation and make equal opportunity in employment the law for all Virginia state employees regardless of race, national origin, sex, age, disability, political affiliation, religion, and, yes, sexual orientation.

It is simply the RIGHT thing to do.

Please urge your Senator to vote YES on SB 66. You can find out who your senator is and how to contact him or her on the Virginia General Assembly home page.

Controlling the Headline (or not)

So, prompted by the recent active inclusion of state employees in political ads during the recent campaign cycle, I set out to write a piece that would provoke debate on a simple question -- should Virginia have a state level Hatch Act that would protect state employees from pressure to engage in partisan political activities? And, I thought I'd managed to focus the piece on the issue rather than the people. But, having submitted the piece with the title "Hatching Virginia?," I didn't remember to ask what title the headline writers were going to use. Unfortunately, their choice focused the reader on the person who used the ads rather than the issue, and made it seem as if I was attacking the individual rather than the topic. Perhaps this was too nuanced a distinction. I still think that the issue is an important one.

So, here's a link to the Back Page piece I wrote that appeared in Style Weekly today.

And, here's the text of the Letter to the Editor that I've written and asked be published next week:

To the Editor:

I should have known better. I wrote what I believed was a thoughtful Back Page piece meant to invite discussion on a simple question -- should Virginia have a law like the federal Hatch Act that would limit the participation of public employees in partisan political campaigns? My title for the piece as submitted to Style was "Hatching Virginia?" I held the piece until after the election because I didn't want it to be seen as either partisan or personal. I wrote the piece to focus on the issue and how it should be decided in the future ... not to criticize any one candidate or any one campaign. All my care went for naught, however, because I didn't have control either of Style Weekly's choice of title for my Back Page piece or of the graphic. No one who saw either the title or the graphic for last week's Back Page would think the op-ed was anything other than a personal attack on our Governor-elect. That was neither my purpose nor intent. I hope that the Governor-elect will accept this as a public and heartfelt apology for my inexcusable naïveté in allowing this to happen. I should have known better.

Very truly yours,

Claire Guthrie Gastanaga

I'd love to hear what you think ... about the issue and the questions raised in the op-ed and about the choice of headline and whether my concern about it is well-founded.

Gay Republicans Praise McDonnell, Dis Cooch

David Lampo and other members of the Log Cabin Republican Club of Virginia have been active the last couple of days ... first complimenting gubernatorial candidate Bob McDonnell for his recent statements affirming his view that government should not discrimination against people based on sexual orientation and, then, blasting Cooch in an oped in the Augusta Free Press for his promise to discriminate actively against gay people as Attorney General.

Today, the Log Cabin Republicans issued a statement reacting specifically to quotes from Cooch included in the Virginian Pilot endorsement of Steve Shannon. Amy Gardner has the story on her Post blog.

Cooch told the Pilot:

He declined to commit to a nondiscrimination policy against gays and lesbians observed by former Attorney General Bob McDonnell: “ My view is that homosexual acts, not homosexuality, but homosexual acts are wrong. They’re intrinsically wrong. And I think in a natural law based country it’s appropriate to have policies that reflect that. ... They don’t comport with natural law. I happen to think that it represents (to put it politely; I need my thesaurus to be polite) behavior that is not healthy to an individual and in aggregate is not healthy to society.”

The Pilot's response?

To put it politely, Cuccinelli’s election would bring embarrassment to Virginia, instability to the state’s law firm and untold harm to the long list of people who don’t fit his personal definition of morality.

The reaction from Log Cabin Republicans?

... we call on Republican leaders and candidates throughout Virginia to repudiate Cuccinelli's hateful remarks and stand with Bob McDonnell on this important issue.

Couldn't have said it better myself.

Choosing the People’s Lawyer: Questions to Ask Candidates for Virginia Attorney General

This is an update of a blog entry I wrote before the 2005 elections regarding the role of the Attorney General and the scope of the power we afford the person we elect to this too little discussed, "down ballot" race. I hope that you will find it helpful.

Choosing the People's Lawyer: Questions to Ask Candidates for Virginia Attorney General
The Virginia Attorney General is the people’s lawyer serving as our advocate in consumer matters, defending our decisions as jurors in criminal appeals, protecting our investments in charitable organizations and institutions, initiating and overseeing prosecution of government fraud and conflicts of interest, and advising the state officials and agencies who serve us.

Just as you choose carefully the lawyer who advises your business and your family, each Virginian should look carefully at the qualifications and stated priorities of the two men running for Attorney General this year, Delegate Steve Shannon (D) and Senator Ken Cuccinelli (R).

Here are some questions to ask that will help you can decide which man to "hire" as your lawyer when you enter the polling booth to vote on November 3rd:

How will the candidates represent your interests as "consumer counsel?"

The Attorney General is required by state law to represent the "interests of the people as consumers." What does this mean to the candidates for Attorney General? Will either of them take an active role in investigating and enforcing Virginia’s Consumer Protection Act prosecuting actively those who deceive consumers by making false claims about their products or services? What action will either take to protect consumers’ interests when electric and telephone rates are reviewed by the State Corporation Commission? One past Attorney General helped reduce workers’ compensation insurance costs for businesses by aggressively fighting insurance rate cases before the State Corporation Commission. Others have been less active.

How will each candidate decide when to challenge or defend a law passed by the legislature, appeal a case or sign an amicus ("friend of the court") brief?
Past Virginia Attorneys General, acting on behalf of the people of the Commonwealth of Virginia (their ultimate client), have: 1) refused to defend the legislature’s decision to increase office allowances for members of the House and Senate (the legislature won); 2) defended at trial and on appeal a plainly unconstitutional statute passed by the legislature that sought to ban a particular abortion procedure (the so-called partial birth abortion bill); 3) filed lawsuits attacking the application of certain EPA rules and the federal Motor Voter Law to Virginia; and 4) authored or signed briefs that advocated severe limitations on the right of individuals to sue the state for discrimination under the Americans with Disabilities Act, the Age Discrimination Act and Title IX of the Education Amendments of 1972.

How will this year’s candidates make these decisions? Will their choices reflect their personal beliefs, those of their respective political parties or some other standard? Will they consult with the Governor before committing the people of the Commonwealth to a side in a legal dispute?

Will the candidates be "activists" or "strict constructionists when it comes to interpreting the law?

The Attorney General is required to issue formal opinions regarding how the law should be interpreted when asked by certain public officials. The questions asked each year cover far reaching issues from the legality of "pull tabs" in fraternal lodges to the right of localities to regulate shooting ranges to the Lieutenant Governor’s authority to vote as "a member of the Senate."

Just as it is important to know how a judge will apply the law, it is important to know how a candidate for the office of Attorney General will carry out this judge-like responsibility.

One example shows the power the Attorney General can wield through the opinion function. In 1962-63, in 1966-67 and in 1991, three Attorneys General opined that it was unconstitutional under the Virginia Constitution for public school divisions to provide free bus service to students attending private religious schools. The three Attorneys General interpreted the Virginia Constitution as setting a stricter standard for the separation of church and state than is set by the First Amendment. This longstanding interpretation was never addressed by the Virginia legislature nor overturned by the Virginia courts. In 1995, stating simply that "I am of the opinion that these prior opinions do not accurately state the current law," then Attorney General James Gilmore issued an opinion overruling the prior opinions and interpreting the law as permitting local school divisions to provide bus transportation to students attending private religious schools. How will this year's candidates approach this important duty?

Will the candidate be a good steward of your tax dollars?

The Attorney General of Virginia, who makes a salary of $150,000 a year, is the managing partner of a public law firm with almost 350 employees and a budget of more than $36 million -- not including the cost of additional lawyers paid for by various state agencies but supervised by the Attorney General, and the millions of dollars spent annually on outside counsel (private lawyers and law firms) who handle matters ranging from issuance of bonds to collection work.

What steps will each candidate take to be sure that dollars spent on the state’s legal work are well invested and that the quality of representation provided to taxpayers is high? What will the candidates do to improve the state’s collection of debts owed and fines and penalties unpaid? How will each candidate account for the $9,000 a year that he will receive as Attorney General for expenses "not otherwise reimbursed?"

Will the candidate’s management practices as Attorney General reflect a commitment to full equality of opportunity at all levels?

The Attorney General can hire and fire employees at will. Will the candidate seek and hire employees based on merit? Will the candidate commit not to discriminate in employment based on race, national origin, gender, religion, disability, Veterans’ status, sexual orientation or gender identity? Will the candidate commit to ensure that the Office’s hiring and personnel practices reflect a commitment to merit over political affiliation and full equality of opportunity and compensation at all levels of employment? How will each candidate assure that the contracting and procurement practices of the Office of the Attorney General under his leadership assure that small, women and minority owned businesses get their fair share of the state dollars that the Office spends?

How the candidates for Attorney General answer these questions will reveal much about what kind of leader each will be in the role he is now seeking and more about what kind of leader he might be as Governor when he (inevitably, it seems) decides to move up in four years.

Save Lives Save Money

100,000 Lives Lost Each Year; $45 Billion Wasted

A critical issue that must be a part of any health care reform initiative is patient safety. Reducing hospital acquired infections and preventing in-facility accidents and medical mistakes will save lives and money.

Consumers Union reports that hospital acquired infections and other preventable medical injuries continue each year to kill 100,000 people and cost the health care system at least $45 Billion dollars. That's no change since the original To Err is Human report was published 10 years ago. Think about that folks ... that's like the airline industry crashing 300 jumbo jets a year with no one raising any serious questions about airline safety practices. And, the failure to respond effectively to this issue has allowed 1,000,000 people to die in the last decade without serious outcry from the public.

I first wrote about this in a two part article that appeared in Richmond Woman magazine in June and July 2005. In the second article, I recommended adoption of a simple proposal that would begin to make patient safety a "bottom line" concern for Virginia hospitals:

It is time to start paying for performance, and rewarding health care institutions that save lives and money. According to Leape and Berwick, “[t]he current reimbursement structure works against improving safety and actually rewards less safe care in many instances.” … In most industries, defects cost money and generate warranty claims. In health care, perversely, under most forms of payment, health care professionals receive a premium for a defective product; physicians and hospitals can bill for the additional services that are needed when patients are injured by their mistakes.” JAMA, May 18, 2005, page 2388.

In a report to Congress on March 1 of this year, the Medicare Payment Advisory Commission concluded, “it is time for the Medicare program to differentiate among providers when making payments.” The Commission called for Congress to instruct the Medicare program to design a pay-for-performance system that rewards improvement, as well as attaining or exceeding certain benchmarks.

It is time for us to call on the Virginia legislature to implement a Medicaid reimbursement system that is structured to reward institutions that implement these safe practices. Private insurers should follow suit.

Since I wrote this, the Medicare system has adopted rules that prohibit reimbursing hospitals and health care institutions for the costs of preventable medical injuries and infections. And, private insurers, including Anthem's parent Wellpoint, have taken action as well.

What has Virginia done?

• Adopted a "disclosure" law (enacted in 2005 but not effective until July 1, 2008) that requires hospitals to report hospital acquired infections to the CDC and the Board of Health and permits the Board of Health to release the information to the public "upon request." Consumers Union says that this is "not desirable" and that "web based reports are the way to go." Other states have much stronger reporting and disclosure laws.
• Failed to adopt budget language proposed by Governor Tim Kaine that would have allowed the Department of Medical Assistance Services to issue regulations conforming hospital reimbursements under Medicaid to the federal rule prohibiting Medicare from reimbursing for the costs of preventable medical injuries and infections. The language in the Governor's proposal was:

ZZ. Effective July 1, 2009, the department shall have the authority to amend the State Plan for Medical Assistance to eliminate reimbursement for hospital acquired conditions in a manner similar to the Medicare initiative implemented October 1, 2008. The department shall have the authority to implement this reimbursement change effective July 1, 2009, and prior to the completion of any regulatory process undertaken in order to effect such change. The department shall also revise its medical necessity criteria to be consistent with Medicare national coverage determinations as part of the overall Medicare initiative.

What can you do?

• If you care about patient safety and reducing the cost of health care, it's time to ask your Virginia legislators why this language wasn't in the final budget adopted during the 2009 Session, and to ask candidates for statewide office or the House of Delegates to commit to support this important change in Medicaid reimbursement rules in the future.
• In addition, take action though the Consumers Union Safe Patient Project to ensure that this issue gets priority treatment during the debate on health care reform.

Not acting means your loved one may be the next casualty of a system where mistakes pay. Take action now to save lives and save taxpayer dollars.

Update:
1) The America's Affordable Health Choices Act of 2009 would require disclosure of hospital acquired infections and conforming Medicaid reimbursement policies to Medicare's. See Subtitle E at page 654 of the introduced bill.
2) A Washington Post article by Lisa Rein published today, Hospitals Tally Their Avoidable Mistakes, includes the following information about recent developments in Virginia:

In Virginia, which so far is requiring reporting only of serious infections caused by IV insertions, the state hospital association is trying to get ahead of the curve: On behalf of the state's 95 hospitals, it reached a deal last month not to bill for several errors caused by hospital staff. "The hope is to send a message that if we make a mistake, we're going to own up and take the consequences," said Katharine Webb, the association's lobbyist.

Anthem Blue Cross and Blue Shield, Virginia's largest private insurer, has stopped paying hospitals for four surgical mistakes: when a wrong procedure is done; when the wrong body part is operated on; when the wrong patient is operated on, and when a foreign object is left inside the patient, requiring another incision. "We wanted to raise the profile of patient safety," said Jay Schukman, regional president and senior medical director for Anthem Blue Cross and Blue Shield's East Region.