Category Archives: Governance

Understaffed Nursing Homes and the False Claims Act

Posted on July 22, 2023 by | 26 comments

by James C. Sherlock

Nursing home operators, paid by government insurance programs on a per diem basis for caring for their patients, make higher profits if they understaff than otherwise.

The less staff they have, the higher their operating margins.

The federal government, with much experience in such situations, tries to offset those incentives with disincentives. It thinks, reasonably, that patients should actually receive the care that is paid for with government insurance funds.

In Virginia, some senior members of the health committees of the General Assembly are in love with our nursing home operators, offering legislation as gifts. That love is requited in the form of unlimited campaign contributions from the operators.

Touching story.

This being Virginia, that is legal. And too common.

However, help for patients is available and very active on another front: fraud charges brought by states and the Justice Department in federal court.

The unanimous Supreme Court opinion in Universal Health Servs., Inc. v. United States 136 S. Ct. 1989 (2016) • 195 L. Ed. 2d 348 Decided Jun 16, 2016 provided precedent for such filings under the False Claims Act.

The Court validated the government’s theory of law that a provider can be guilty of making a false claim based on the underlying representation that the care provided complies with the government Conditions of Participation.

Grossly understaffed nursing homes can be guilty of criminal or civil false claims or both by accepting payments for services which they do not provide or provide inadequately.

Both state and federal governments know exactly who those understaffed nursing homes are and have the payroll-based data to prove that some could not have provided it.

And they are taking the worst offenders to court. Continue reading →

26 Comments

Posted in Courts and law, Crime , corrections and law enforcement, General Assembly, Governance, Government Oversight, Health Care

Info-Wars at UVa: Who Decides What the BoV Needs to Hear?

Posted on July 21, 2023 by | 29 comments

Provost Ian Baucom

by James A. Bacon

Last October University of Virginia Provost Ian Baucom briefed the Faculty Senate executive committee about a package of four multimillion-dollar academic initiatives that were in the works. The camera angle in the video recording shows him as a tiny, barely discernible figure at the far end of a long conference table. But his fast-clipped, staccato voice comes through loud and clear.

One initiative would address society’s “Grand Challenges” while another would build the university’s R&D infrastructure. Two others, largely geared to the pursuit of diversity, would set up a $20 million fund to aid the recruitment of graduate students and a $20 million fund to boost recruitment of “under-represented” faculty.

Members of the Faculty Senate were on board with the diversity programs, and Baucom felt at ease talking about them. “Behind [the faculty-recruitment initiative],” he said, “is the reaffirmation of the Audacious Futures Report to double the number of under-represented faculty. The president and I have been very clear that he stands by that goal.”

Four months later when the initiatives had moved further through the administrative pipeline, though, the Provost was less forthcoming with the Board of Visitors than he had been with the faculty. He described the Grand Challenges and R&D initiatives in considerable detail, but barely acknowledged the other two strategic priorities. He never explained that the faculty and graduate-student initiatives were designed in part to advance diversity.

The dichotomy in Baucom’s presentations raises important questions of governance at UVa. At a time when racial preferences in admissions and hiring are coming under increasing scrutiny, how much information about those practices is the Ryan administration withholding from the Board of Visitors? Who decides what to tell the Board? What power does the Board have to demand a fuller accounting? Continue reading →

29 Comments

Posted in Culture wars, Education (higher ed), Governance

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Youngkin Budget Leadership Faulted

Posted on July 14, 2023 by | 28 comments

David Toscano

by Dick Hall-Sizemore

This blog gives ample exposure to conservative bloggers Kerry Dougherty and Shaun Kenney, but not to bloggers with other perspectives.

David Toscano of Charlottesville, former Democratic floor leader in the House of Delegates and the author of a book on recent Virginia politics, regularly comments on Virginia politics, which is available to anyone who subscribes (free) to his e-mail list.

Here is his latest in which he takes Governor Glenn Youngkin to task for a lack of leadership on Virginia’s budget.  He contrasts Youngkin’s passive approach to the active approach of Mark Warner in somewhat similar circumstances.  Regardless of what one thinks of Toscano’s views on various policy issues that he lists in the commentary, it is hard to argue against the proposition that Youngkin has been absent in the budget negotiations.

28 Comments

Posted in Budgets, General Assembly, Governance, Politics

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Where Do Dems Stand on Civil Immunity for Law Enforcement Officers?

Posted on July 8, 2023 by | 16 comments

by James C. Sherlock

Photo credit: Richmond Times-Dispatch

Being a law enforcement officer is tough under the best of circumstances.

Do you think that exposure to losing your house and car in a civil suit for something you did in a split second to protect the public and yourself and did not have reason to know was against the law would deter you from a job in law enforcement?

Truth is, it would deter all of us.

Virginia Democrats in 2021 introduced legislation to eliminate under Virginia law a peace officer’s ability to offer an immunity defense in state courts against civil lawsuits for actions that violate constitutional rights:

A. Any law-enforcement officer, as defined in § 9.1-101, who, under color of law, subjects or causes to be subjected, including failing to intervene, any other person to the deprivation of any rights, privileges, or immunities granted to such person under the constitutions and laws of the United States and the Commonwealth, shall be liable to the injured party for compensatory damages, punitive damages, and equitable relief….

B. Sovereign immunity and any limitations on liability or damages shall not apply to claims brought pursuant to this section. Qualified immunity is not a defense to liability imposed by this section.

A 2017 per curiam (unanimous) opinion by the Supreme Court reiterated a long-existing legal standard that qualified immunity is an available defense for law enforcement officers unless there is “clearly established law giving each individual Officer fair notice that his particular conduct was unlawful.”

It is hard to imagine that the Supreme Court, unanimous there, would permit a state law that denied civil immunity without fair notice of the illegality of specific acts.

Regardless, under the 2021 Democratic bill in Virginia, officers were to be in jeopardy in civil suits whether or not they had fair notice that their actions, split-second or otherwise, were unlawful.  They were specifically to be required to judge the constitutionality of specific actions.

With a gun in their face.

It draws a very clear line for political debate. Continue reading →

16 Comments

Posted in Civil Rights, Courts and law, Crime , corrections and law enforcement, Culture wars, Elections, General Assembly, Governance, Law enforcement, Politics

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Equal Protection, Affirmative Action and Effecting Generational Change

Posted on July 6, 2023 by | 40 comments

by James C. Sherlock

America is the most successful nation in the history of the world because of the freedoms and rights guaranteed by our Constitution.

More than a hundred other nations have emulated the American Constitution.

Without constitutionally guaranteed freedoms and rights, we would be chained to the whims of the state. Most immediately to the whims of the executive branch. There would be precious little for the judicial branch to protect.

A recent Supreme Court decision found affirmative action in college admissions to be unconstitutional under the 14th Amendment, Section 1:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Justice Roberts for the majority ruling that the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause:

Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.

Three justices disagreed.

Justice Sotomayor read her opinion from the bench — a sign of strong disagreement. An excerpt:

Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.

Note that Justice Sotomayor, as always careful of the words in her opinions, chose “endemically” to modify “segregated.” Oxford dictionary: “regularly found and very common among a particular group or in a particular area.”

That is different than the word “systemically” — Oxford: “in a basic and important way that involves the whole of an organization or a country and not just particular parts of it.” Continue reading →

40 Comments

Posted in Children and families, Civil Rights, Courts and law, Culture wars, Education (higher ed), Education (K-12), Freedom, Governance, Individual liberties, Politics, Poverty & income gap

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The Document That Inspired the Declaration of Independence

Posted on July 4, 2023 by | 8 comments

“Give me liberty or give me death!” So proclaimed Patrick Henry in delivering his great speech on the Rights of the Colonies, before the Virginia Assembly, convened in Richmond on March 23, 1775, as re-created in this artwork by Currier and Ives. (Photo: Heritage Images/ Hulton Archive/Getty Images)

by Joseph Postell

It’s common for Americans on July 4th to read and discuss the Declaration of Independence, and to reflect on its principles and ideas. Those principles and ideas are often attributed solely — though wrongly — to Thomas Jefferson, the primary author of the draft of the Declaration.

Jefferson’s draft was modified in two stages: first, by a “Committee of Five” composed of Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and Robert Livingston; and second, by the entire Continental Congress.

The Congress discussed Jefferson’s draft for three days, and made significant changes (according to Jefferson, “depredations”) to his work.

In short, the Declaration was the work not of a single person, but of the representatives of the American people. Jefferson was the author of the draft, but it was an American Declaration.
Continue reading →

8 Comments

Posted in Democracy and Western Civilization, Governance, Uncategorized, Virginia history

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Check Out Which New Virginia Laws Go Into Effect July 1st

Posted on June 30, 2023 by | 11 comments

by The Republican Standard staff

The Virginia General Assembly passed several small bills due to the split between the Republican-led House of Delegates and the Democratic-controlled Virginia State Senate. Yet the areas where they did find co-operation could matter to many Virginians as we head into Fourth of July weekend.

Enhanced Penalties for Fentanyl Manufacturing or Distribution
Reeves SB1188 Senate 35-5 House 50-42
Provides that any person who knowingly and intentionally manufactures or knowingly and intentionally distributes a weapon of terrorism when such person knows that such weapon of terrorism is, or contains, any mixture or substance containing a detectable amount of fentanyl is guilty of a Class 4 felony.

Universal Occupational License Recognition
McDougle SB1213 Senate 40-0 House 99-0
Establishes criteria for an individual licensed, certified, or having work experience in another state to apply to a regulatory board within the Department of Professional and Occupational Regulation and be issued an occupational license or government certification if certain conditions are met.

Police Chiefs May Enact Local Curfews during Disturbances
Norment SB1455 Senate 27-12 House 53-45
Enables the chief law-enforcement officer of a locality to enact a curfew under certain circumstances during a civil disturbance.

Making Sure Every District has a Legislator
Suetterlein SB944 Senate 39-0 House 99-0
Requires special elections to fill a vacancy in the membership of the General Assembly be held within 30 days of the vacancy if the vacancy occurs or will occur between December 10 and March 10 which coincides with time right before and during the General Assembly session. Continue reading →

11 Comments

Posted in Business and Economy, Courts and law, Crime , corrections and law enforcement, Economic development, Elections, Finance (government), General Assembly, Governance, Government Oversight, Government workers and pensions, Law enforcement, Politics, Regulation, Uncategorized, Virginia Law

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Patriotism in Virginia

Posted on June 28, 2023 by | 13 comments

by Robin Beres

In less than a week, Virginians, like Americans everywhere, will celebrate Independence Day. This year, despite high inflation, high gas prices, a sharply divided electorate, and rising crime rates, there seems to be a growing consensus that we celebrate this occasion with all the gusto we can muster.

Despite the holiday falling on a Tuesday, from Winchester to Norfolk to Abingdon, plans are afoot for a glorious Fourth, complete with fireworks, parades, and hot dogs. Mount Vernon is celebrating the naturalization of hundreds of new American citizens. Colonial Williamsburg is offering free admission to its historic area and art museums on July 4. Virginia Beach is hosting free concerts on 17th Street, 24th Street, and 31st Street. Just about every small town and village is having a parade. With 27 military installations around the state, expect to see lots of marching troops and military static displays.

Audience members hold their hands over their hearts while the U.S. Air Force Band plays the national anthem at Williamsburg, Va., July 4, 2012.

Thankfully, Virginia has so far managed to avoid the oppressive heat dome that sits over much of the United States. But even if the temps do soar above the 90-degree mark, it probably wouldn’t deter many Virginians from celebrating our Independence Day. It’s what we do — and studies show we do it with more pride than any other state in the union. Continue reading →

13 Comments

Posted in Freedom, Governance, Virginia history

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School Boards, Model Policies and Parental Rights in the Raising of Children

Posted on June 11, 2023 by | 16 comments

by James C. Sherlock

The Virginia Beach School Board will vote tomorrow.

The announced subject will be transgender rights in schools.

It is couched by The Virginian-Pilot as the school board defending transgender students against “unnecessarily cruel policies.“  As opposed, one supposes, to necessarily cruel policies.

The local paper refers, of course, to the Youngkin administration’s “Model Policies” on the subject. Which, like their predecessors from the Northam administration, are not mandatory, so need not be debated at all.

The School Board debate is at its core constitutional.

You will note that the Youngkin Model Policies linked its constitutional interpretations to court decisions. The Northam version did not. Northam’s just asserted what the constitution meant. Must have been an oversight.

My take:

  • Families are responsible for shaping the values, beliefs, and personalities of children;
  • Government is required to protect children from abuse and neglect. But government schools are not allowed to substitute their judgements on values and beliefs for those of the families;
  • They are most certainly not permitted to define parental moral or political disagreements with school personnel as emotional abuse at home. Or as harassment of government schools or teachers;
  • And government schools, absent evidence of abuse or neglect, must never be allowed to substitute their own moral judgments for those of parents.

But that’s just me. Not a lawyer. Continue reading →

16 Comments

Posted in Children and families, Civil Rights, Culture wars, Education (K-12), Freedom, Governance, Individual liberties, Marxism, Parental Rights, Politics, Social services

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Scandal in Plain Sight – Virginia’s Failed Regulation of Law-Avoiding Nursing Home Owners

Posted on June 10, 2023 by | 28 comments

by James C. Sherlock

One of the most important and heart-wrenching decisions families make for their elderly loved ones is whether they are able to keep them in their homes as they get older and sicker.

Sometimes that is not feasible for a long list of reasons in each case.

More than 30,000 Virginians live in nursing homes.

Both the federal government and Virginia regulate them.  The Virginia Department of Health, for both the Commonwealth and the federal government, inspects.

We should be able to expect patients to receive at least basic standards of care. A high percentage in Virginia have not .

In a five-star system, the Centers for Medicare and Medicaid Services (CMS) rates 98 of Virginia’s 289 nursing homes at one star – defined as much below average. More than a third.

Nationwide, only the worst 20 percent receive a one-star rating.

The last time I reported, in October of 2021, those figures were 54 one-star facilities out of 288. Nineteen percent.  So some of our nursing homes have gotten precipitously worse.

The ratings are backward-looking a couple of years, so the measured declines discussed here did not start recently.   By definition of the way that Medicare compiles records and assigns scores, some have been bad for a long time.

People have suffered and died from the lack of proper care and effective oversight. Continue reading →

28 Comments

Posted in Change Management, Consumer protection, Courts and law, Efficiency in government, General Assembly, Governance, Government Oversight, Health Care, Law enforcement, Long Term Care and Nursing Homes, Medicaid, Money in politics, Open Government

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FIVE QUESTIONS: Virginia Attorney General Jason Miyares

Posted on May 30, 2023 by | 3 comments

by Shaun Kenney

Last week, TRS was able to sit down and talk with Virginia’s Attorney General Jason Miyares (R-VA) about the challenges he is facing from opioid and fentanyl abuse to the FBI Richmond’s targeting of Catholics in the public square.

Miyares — a longstanding conservative in the tradition of Ronald Reagan and a leading thinker in his own right — shares his convictions, his hope for civility over violence, and some discussion on what he rightly calls the American Miracle.

So it seems as if some congratulations are in order. Russian President Vladimir Putin has put you on the Russian sanctions list. What did you do to earn such an esteemed award?

Yeah, I keep making lists!

I keep visiting with the Uigurs in Northern Virginia. I find it interesting but not surprising because we have such a different worldview. I detest autocracy and tyranny in all forms. When Putin said that the collapse of the Soviet Union was the single greatest catastrophe of the 20th century, I view that as Ronald Reagan’s greatest victory.

Yet the reality of any autocratic regime is that ideology trumps the individual. C.S. Lewis said that of all the tyrannies in the world, the tyrannies that are for your benefit are the worst in the world. Solzhenitsyn writes about this in the Gulag Archipelago.
Continue reading →

3 Comments

Posted in Children and families, Crime , corrections and law enforcement, Culture wars, Education (K-12), Elections, Governance, Immigration, Leadership, Parental Rights, Uncategorized

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Ah, So That’s What That Was All About!

Posted on May 28, 2023 by | 12 comments

Leighty, Bill. Capitol Secrets: Leadership Wisdom from a Lifetime of Public Service.  Holon Publishing, 2023.

A review by Dick Hall-Sizemore

The public sees the result of policy development.  What the public does not see is the sometimes- messy process that produced that policy nor, more broadly, what goes on behind the scenes to make government work.

In his recently released memoir, Bill Leighty has drawn back the curtain a bit to reveal some of the inner workings behind some of the activities of Virginia state government during a recent 30-year period.

Bill Leighty is not a name widely known by the general public. However, he was, and, to some extent still is, known by legislators, lobbyists, reporters, Cabinet members, agency heads, and other denizens of Capitol Square.

Bill Leighty

Through the course of his career, Leighty cut a wide swath through state government. After a stint in the Marine Corps following high school, he earned a bachelor’s degree from the University of Mary Washington and an MBA from Virginia Commonwealth University and landed a job in 1978 with the Virginia Department of Taxation. The agency assigned him to a new unit established to prepare revenue forecasts. That unit also prepared fiscal impact statements on tax bills for the legislature. Continue reading →

12 Comments

Posted in Book review, General Assembly, Governance, Politics, Virginia history

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The Song’s Not New Just Because You Haven’t Heard It Before

Posted on May 23, 2023 by | 1 comment

by Joe Fitzgerald

When I was a younger man and indulged in that lowdown southern whiskey, I would sometimes sum up the next day by saying, “I don’t remember church bells.”

Astute observers will immediately recognize literary allusions to Little Feat’s “Dixie Chicken,” one of the great rock-and-roll story songs.

Now, 41 years sober, I hear the song differently. It’s the story of someone finding out that an experience may have been unique to him, but wasn’t unique.

Which leads me back, to the surprise of no regular reader, to Bluestone Town Center. BTC is an ill-advised development based on empty promises, misguided good intentions, and governmental obtuseness. Those wishing to know the other side of the story are welcome to Google it.

I was struck during the discussions of the project by how often supporters of the project fell back on baseless accusations of racism and privilege or answered objections that hadn’t been raised. I also noticed things in the city’s deeply flawed housing report that had little to do with building or selling housing.

Come to find out, any discussion of housing faces an underlying set of assumptions. And as any student of left-leaning politics knows, many of those assumptions lead to the expectation that anyone opposing any housing issue must prove their motivations and intentions are not racist, classicist, ageist, or ableist. Continue reading →

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Posted in Economic development, Efficiency in government, Governance, Housing, Land use & development

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Major Actions to Reduce Corporate Overhead Offer Lessons and Opportunities to Virginia Government

Posted on May 16, 2023 by | 27 comments

Courtesy Wall Street Journal

by James C. Sherlock

The chart above shows that management and administrative overhead growth has been a trend not limited to government. The difference is that corporations are making quick and decisive strides in reversing the trend.

It is axiomatic that government should minimize overhead to maximize efficiency in delivery of services. And to lower its costs.

Efficiencies need to be found:

  • to maximize value for citizens;
  • to speed decision-making;
  • to minimize administrative consumption of the time and attention of front line workers; and
  • to restore freedom of speech suppressed by government bureaucracies assembled for that purpose.

All senior government managers would sign up for those goals — as theory. But execution is hard. Internal pressures against change are seldom exceeded by external ones that demand it.

An excellent report in the Wall Street Journal makes an observation that they may wish to consult for inspiration.

Companies are rethinking the value of many white-collar roles, in what some experts anticipate will be a permanent shift in labor demand that will disrupt the work life of millions of Americans whose jobs will be lost, diminished or revamped partly through the use of artificial intelligence.

‘We may be at the peak of the need for knowledge workers,’ said Atif Rafiq, a former chief digital officer at McDonald’s and Volvo. ‘We just need fewer people to do the same thing.’

Continue reading →

27 Comments

Posted in Budgets, Change Management, Efficiency in government, Finance (government), General Assembly, Governance, Government workers and pensions, Labor & workforce, Public employee unions

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Virginia Secedes from National Elections Organization

Posted on May 13, 2023 by | 22 comments

by Jim McCarthy

A February 25 article in Bacon’s Rebellion, “Forget Waldo, Where’s ERIC?” by James Wyatt Whitehouse raised questions about the volunteer national election clearing house organization entitled Electronic Information Registration Center, or ERIC. The BR piece highlighted the experience of the Alabama Secretary of State:

On February 15, 2023, Alabama Secretary of State Wes Allen paid a visit to the ERIC headquarters in Washington, D.C. It is important to note that Mr. Allen withdrew Alabama from participation in ERIC just a few weeks before his visit. Mr. Allen had this to say about his visit to the Connecticut Avenue headquarters of ERIC, Inc.: ‘I was in DC for a meeting of the National Association of Secretaries of States and, since I was in town, I went to see the ERIC Headquarters. What I found was that there was no ERIC headquarters at that address. There were no employees. There were no servers. There was no ERIC presence of any kind. Instead, I found a virtual office that is rentable by the day. What it was missing was people, servers, and any sign of the ERIC team.’

The absence of existential staff and the existence of a virtual office prompted subsequent questions concerning ERIC’s information security and its utility to member states. As noted, Mr. Allen pulled the trigger on his state’s membership weeks before asking his questions. In 2012, Virginia was a founding member of ERIC under the administration of Governor Bob McDonnell.
Continue reading →

22 Comments

Posted in Elections, Electoral process, Governance, Government Oversight, Open Government, Transparency, Uncategorized

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