"Whether the Board of Health may require that facilities in existence before the enactment of the Regulations for Licensure of Abortion Facilities satisfy the 'design-and-construction standards' in those regulations."
After exhaustive and careful review, Attorney General Herring has concluded that:
"...in 2011 and 2013 the Board did not have the authority to apply the design-and-construction section of the regulations to facilities built before the regulations took effect, nor does it have the authority to do so now."
The opinion supersedes and reverses incorrect advice provided to the Board of Health by the previous Attorney General during the regulatory process in 2012. That advice--that design-and-construction standards had to apply to preexisting facilities--is not supported by the law and represented an anomaly in how the Board of Health has treated the facilities it regulates and the way that laws are interpreted in Virginia. This opinion restores the way the Board has traditionally dealt with "design-and-construction" standards of health care facilities--namely that they apply only to new construction and major renovations.
Design-and-construction standards do not apply to preexisting facilities because:
1--The General Assembly did not use any language authorizing the Board to apply design-and-construction standards to facilities built before the new regulations took effect. Laws in Virginia are not applied retroactively unless the legislation explicitly says to do so, which the General Assembly did not do for these regulations.
2--Applying design-and-construction standards retroactively to pre-existing facilities is contrary to the longstanding administrative practice of the Board of Health. The General Assembly knew that the Board of Health has always applied these standards prospectively for health care facilities (hospitals, nursing homes) not retroactively, and it did not indicate in the legislation that these regulations were to be handled differently.
3--Under the statute, the "design-and-construction" regulations are supposed to be "consistent with the current edition of the Guidelines for design-and-construction of Hospital and Health Care Facilities issued by the American Institute of Architects Academy of Architecture for Health." The Guidelines explicitly limit the scope of their application to "new construction and major renovation projects."
4--The Virginia Uniform Statewide Building Code makes it plain that standards in the building code should not be applied retroactively:
"Any building or structure, for which a building permit has been issued or on which construction has commenced, or for which working drawings have been prepared in the year prior to the effective date of the Building Code, shall remain subject to the building regulations in effect at the time of such issuance or commencement of construction."
Second, Commissioner Levine asked in her opinion request:
"If the Board of Health has the discretion under § 32.1-127.001 of the Code of Virginia to decide which prevails-the Uniform Statewide Building Code or the Guidelines for design-and-construction of Hospitals and Outpatient Facilities -when the two standards contain conflicting requirements."
Attorney General Herring concludes that the 2013 regulatory process got it right and "the Board was correct in its determination in 2013 that the Guidelines prevail over the USBC" because the plain language of the statute, " Notwithstanding any law or regulation to the contrary, the Board of Health shall promulgate regulations... consistent with the current edition of the [Guidelines]," means that it supersedes any other statutes that may be in conflict.
Third and finally, she asked:
"What § 32.1-127.001 means when it provides that the regulations must be 'consistent with' the current edition of the Guidelines for design-and-construction of Hospital and Health Care Facilities."
Attorney General Herring concludes that, because the Guidelines that must inform the regulations include different sets of standards for different types of hospitals, "the Board's task is to determine which parts of the Guidelines should apply to which facilities so that those regulations substantially conform to the standards established by professionals... Just as the Board has determined that inpatient and outpatient categories of hospitals should be consistent with different sections of the Guidelines, the Board has the discretion to determine which parts of the Guidelines are appropriately applied to regulated health care facilities that provide abortion services, in keeping with their treatment as a category of hospital."
Please see below for an on the record quote about the opinion attributable to Attorney General Mark R. Herring:
"The previous administration provided incorrect legal advice to the Board of Health and intervened in a process that is supposed to be driven by medical professionals. That inappropriate intrusion produced regulations that would impose a de facto abortion ban in Virginia by forcing many health care facilities to either shut down, leaving thousands of women without access to critical services, or to stop offering abortion services. Virginia women can make their own healthcare decisions and they have a right to safely and affordably access the full range of healthcare services they may need in the communities where they live.
"Despite what the previous attorney general claimed, nothing in the law requires or even authorizes the Board to apply these design and construction standards retroactively. Without his interference, the Board would have done what it has always done which is apply these standards to new facilities, not preexisting ones. This opinion corrects the previous administration's incorrect advice and helps restore the integrity of the regulatory process, which should be used to ensure the health and safety of Virginians, not as cover to pursue ideological agendas."
Here's some video from tonight's Prince William County Democrats' Jefferson-Jackson Dinner, at which Rep. Bobby Scott was the keynote speaker. Other speakers inluded Virginia AG Mark Herring, Virginia LG Ralph Northam, and Rep. Gerry Connolly (see videos in the comments section). Excellent dinner, thanks to Delegate/future Senator Scott Surovell for inviting me to sit at his table!
Here are a few national and Virginia news headlines, political and otherwise, for Sunday, May 3. Also, check out that map, which shows what Gov. McAuliffe's and Dominion's plans for massive new natural gas pipelines (resulting in a spike in "fracked" gas produced in West Virginia) will to Virginia's air quality. Yet another reason, in addition to economics and a myriad of environmental reasons, to reject these pipelines.
Here are a few national and Virginia news headlines, political and otherwise, for Saturday, May 2. Also, check out President Obama's weekly address, on "expanding access to education, and to spreading the joy of reading to more children and young adults."
Earlier today, Gov. McAuliffe vetoed this bill by Sen. Chap Petersen (SB 965: "Government Data Collection and Dissemination Practices Act; collection and use of personal information by law-enforcement agencies.")Here's Gov. McAuliffe's veto statement, followed by Sen. Petersen's response.
SB 965 (Statement is identical for HB 1673)
Pursuant to Article V, Section 6, of the Constitution of Virginia, I veto Senate Bill 965, which would significantly restrict the use of License Place Readers (LPRs) and lead to many unintended consequences affecting public safety, transportation and the efficient conduct of business in the Commonwealth.
Despite their proven success in locating stolen vehicles, identifying drivers involved in hit-and-run accidents, locating missing children and enhancing overall public safety, this bill would drastically limit the use of LPRs by law enforcement agencies. In order to use a LPR without a warrant under this legislation, agencies must prove the LPR is being used for "known relevance" data collected that are intended for prompt evaluation and that there is suspected criminal or terrorist activity. This provision is extremely narrow and could impede day-to-day operations.
This bill also sets a strict, seven day retention period for all data collected by LPRs. Many localities in Virginia retain this data for 60 days to two years. Seven days is a substantial reduction. Additionally, law enforcement agencies demonstrate that crimes are often not reported until several weeks later. Under this bill, essential data would not be available at the time of those reports. This is particularly concerning when considering implications for the National Capitol Region, where cross-state collaboration and information-sharing are essential to responding to potential criminal or terrorist activity occurring near Virginia's borders.
Furthermore, defining vehicle license plate numbers as "personal information" could dramatically impact state and local agency operations and create public confusion. State law requires that license plates be attached to the front and rear of every vehicle, and license plates must be clearly visible and legible.
This new definition of personal information would likely prevent the live Internet transmission of video from VDOT's traffic cameras as a violation of the state's Government Data Collection and Dissemination Act.
The bill could potentially cripple the use of innovative, electronically-managed tolling lanes that improve the quality of life for Virginians by reducing commute times and expediting the tolling process. These projects use cameras that record license plate numbers for billing purposes, saving travelers the time they would spend waiting in line at a toll booth. The billing mechanism could be in violation of this legislation, eliminating the use of these time-saving travel options.
It would be unwise for me to sign legislation that could limit the tools available for legitimate law enforcement purposes and negatively impact public safety, or derail major transportation projects and jeopardize time-saving technologies that are essential to our economy, our citizens, tourism and the efficient conduct of business. Accordingly, I veto this bill.
First of all, I like the Governor and support his policies on economic development, which have brought thousands of new jobs to Virginia. I also consider him a friend, and sometimes friends disagree, especially when they are both Democrats.
Having said that, I believe that he's getting some very bad advice here, both legally and politically.
First of all, this bill was not "rushed through." The issue has been pending since March 2013, when the Attorney General ruled that License Plate Readers could not be used, except in criminal investigations. Certain police departments refused to follow that opinion, which led to these bills.
Delegate Anderson and myself filed our legislation in January 2014, after a series of Washington Post articles on the unauthorized use of LPR's. We continued our bills for a year so as to get the maximum possible input from all sides of the debate
We pre-filed our respective bills (again) before the 2015 session. There were at least four Committee hearings on our bills, as well as multiple floor debates. The final product of SB 965 was reached by a bipartisan conference committee and unanimously approved by the House and Senate in February -- after a deliberative process of over a year.
Secondly, the bill is not "bad legislation." It was carefully written to only impact "surveillance technologies" which scan and upload personal information. On its face, it applies to random data collection - not data collected pursuant to a specific investigation or from a specific encounter. Contrary to the exaggerated claims of opponents, it had no effect on cameras focused on government property or personnel.
There is no need for the Commonwealth to be collecting private information on its own citizens, without a warrant or investigation. It is time for that Patriot Act mentality to end.
Law enforcement in this state does a great job. I'm proud to support them. But they only have those powers delegated by the Constitution and state law. It is not unlimited.
Here are a few national and Virginia news headlines, political and otherwise, for Thursday, April 30. Also, check out Jon Stewart skewering Wolf Blitzer and other corporate media morons' coverage of Baltimore.
Here are a few national and Virginia news headlines, political and otherwise, for Wednesday, April 29. Also, see Sen. Harry Reid's speech on the situation in Baltimore, and how "we must not ignore the despair felt by many communities in America."
Interestingly, on the map above the most concentrated cluster of racist searches happened not in the South, but rather along the spine of the Appalachians running from Georgia all the way up to New York and southern Vermont.
Other hotbeds of racist searches appear in areas of the Gulf Coast, Michigan's Upper Peninsula, and a large portion of Ohio. But the searches get rarer the further West you go. West of Texas, no region falls into the "much more than average" category. This map follows the general contours of a map of racist Tweets made by researchers at Humboldt State University.
Note that in Virginia, the northern and eastern portions are much LESS racist than average. The further southwest you go, it transitions rapidly to "more [racist] than average" and then "much more [racist] than average." It's also interesting that this map largely aligns with the partisan divide in Virginia, with the "bluest" parts of the state - the "urban crescent" from Northern Virginia to Richmond to Hampton Roads - being the least racist, and the "reddest" parts of the state being the most racist. It would be fascinating to do this study for other forms of bigotry, such as anti-Latino, anti-LGBT, etc. I wonder if anti-black racists also tend to be bigoted in other ways (that would be my guess, a priori).
Here are a few national and Virginia news headlines, political and otherwise, for Tuesday, April 28. As for Gov. McAuliffe, he's absolutely wrong that a wealthy, professional football franchise should be showered with taxpayer-funded corporate welfare to come here. Massive taxpayer ripoff.
Here are a few national and Virginia news headlines, political and otherwise, for Monday, April 27. Also, that photo is from Ayn Rand-worshipping, right-wing extremist Rep. Dave Brat's Facebook page. According to what he calls the "Brat pack," Trump was "in Richmond Friday to offer his support of Dave's great work in Congress," such as "standing up to Obama's destructive policies on illegal immigration, corporate cronyism, and the endless war on the American middle class worker." WTF are they ranting and raving about? Who the heck knows, but it gets super weird and super wacky when you get Dave Brat and Donald Trump together!
Can someone please explain how much, if not most, of this stuff has to do with Christianity? Photo ID? Proof of citizenship to vote? "Illegal aliens?" Eliminating the state income tax? Guns? Offshore oil drilling? Tort reform? Dominion Power? WTF? Of course, this group is a bunch of extremist nuts, but frighteningly, a sizeable number of Virginians agree with them...shuddderrrrr.
Here are a few national and Virginia news headlines, political and otherwise, for Saturday, April 25. Also, see this week's White House address, in which President Obama makes the case for "why new, high-standards trade agreements are important for our economy, our businesses, our workers, and our values." I'm skeptical, but open to being shown exactly how the TPP protects workers, human rights, the environment, etc.
Here are a few national and Virginia news headlines, political and otherwise, for Friday, April 24. The photo, by the way, is in "honor" of Domininion continuing to fuel climate change, this time by proving that they were never serious about offshore wind power, but would rather move ahead with a super-expensive nuclear power boondoggle and super-expensive natural gas pipelines to nowhere. Brilliant.
Here are a few national and Virginia news headlines, political and otherwise, for Wednesday, April 22. As for things that scare conservatives, I'd add "reality," "science," "an informed and engaged electorate," "taking away fossil fuel companies' massive taxpayer-funded corporate welfare," and many other things. Finally, please click here to "Urge Governor McAuliffe To Continue Supporting A Strong Clean Power Plan For Virginia!"
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