David J. Toscano

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General Assembly Updates 2013

2013 Session Highlights (.pdf)

The Affordable Care Act (ACA): What’s Next For Virginia?

October 1, 2013 by David Toscano

Portions of the Affordable Care Act (ACA) have already been implemented in Virginia and throughout much of the country. These include the requirement that there should be no discrimination in insurance coverage based on pre-existing conditions and that parents can retain their children on their health insurance coverage until they reach the age of twenty-six. Both of these reforms are substantial and will likely assist in the provision of better healthcare options for all Americans. But more change is coming. Some citizens will find these confusing and it will require some effort to ensure that those benefits can be fully realized.

Recently, most of the press coverage has focused on Medicaid expansion. As most of you know, I have supported Medicaid expansion for the following reasons:

  1. Medicaid expansion in Virginia will expand health insurance to as many as 400,000 low income Virginians who are not presently covered.
  2. Expansion will bring about $2 billion each year in federal funding to Virginia as the federal commitment is to provide for 100 percent of the reimbursement for coverage to these new enrollees from 2014-2016, and reducing to no less than 90 percent in later years (under the present Medicaid cost-sharing arrangement, the state pays 50 percent of the cost and the federal government pays the other 50 percent).
  3. Expansion will remove part of the coverage gap in Virginia’s healthcare system. Beginning January 1, 2014, adults between ages of 19 and 64 with incomes between 100 percent and 400 percent of the federal poverty line will qualify for subsidized private insurance through healthcare exchanges (Market Place), but poorer adults will qualify for nothing without Medicaid expansion.
  4. According to the Virginia Hospital and Healthcare Association, expansion will create over 30,000 new jobs to the Commonwealth.
  5. Expansion will likely mean that fewer indigent patients will utilize emergency rooms for routine services at higher cost because they can obtain the same service at lesser cost at a physician’s office. This will lower costs for hospitals like UVA and Martha Jefferson.
  6. If we do not expand Medicaid, we will be sending our tax dollars to other states who embrace it. Few Virginia taxpayers support sending their tax dollars to states like New York, California, Connecticut or others which embrace expansion.

While a number of Republican governors have embraced the concept of expanding Medicaid for their citizens, most notably Gov. Kasich of Ohio and Gov. Scott of Florida, our Governor has opposed expansion, as has Attorney General and gubernatorial candidate Ken Cuccinelli.

Opponents of Medicaid expansion claim that it is a broken system where costs are out of control. While it is true that Medicaid costs for the states have risen substantially over the last decade, its costs have risen at a rate lower than private medical insurance.

The administrative costs of Medicaid are less than 7 percent, or half the rate that is typically seen in the private sector. Between 2000 and 2009, the growth in per person costs was much lower in Medicaid (4.6 percent) than in the private insurance market (7.2 percent). The Senate Finance Committee created a great presentation on how Medicaid works or the costs associated with it. The Commonwealth Institute also has compiled the numbers detailing how Medicaid expansion pays for itself through cost savings.

In our last budget, the General Assembly created a Commission drawn from members of the Senate and the House to consider whether and under what conditions we should expand Medicaid. Significantly, the legislature passed language that permits Virginia to remove itself from Medicaid expansion in the event that the federal government does not deliver on its promise to provide the monies at the stated reimbursement rate. Most observers believe that the decision on expansion will depend on who is elected Governor. Terry McAuliffe supports it; Ken Cuccinelli does not.

The adopted budget also provides that any savings realized in the first several years of any expansion because of greater federal subsidies will be reserved to pay future costs that might accrue in later years.

The Commonwealth has about 872,000 uninsured residents so even if we expanded Medicaid, many would still be without health insurance. That is why the ACA created the “health care exchanges” (the “Marketplace”). The Marketplace is a vehicle by which individuals will be able to compare and contrast health insurance plans, and buy them in the new Health Insurance Marketplace from private companies. Under the law, Virginians who earn between 100 percent and 400 percent of the poverty level (between roughly $11,500.00 and $46,000.00 for an individual, and between $23,550.00 and $94,200.00 for a family of four) are eligible to receive a tax credit to defray the costs of buying policies on the Marketplace.

There has been considerable confusion about this portion of the Affordable Care Act, and it is likely that it will be take some time for people to adjust to the options. I supported the idea of having Virginia create its own Marketplace so we could have control over the process, but Republicans in the General Assembly, who were reluctant to embrace any portion of the federal health care act, rejected this idea. Consequently, the Virginian Marketplace is operated by the federal government. Different companies will compete in different parts of the state. In our area, the companies likely to be involved are Coventry Health Care (a division of Aetna), Healthkeepers (Blue Cross), and Optima Health Plan. It is projected that offering these various plans in the Marketplace will allow consumers to compare and contrast both the coverage and the costs, which will hopefully result in coverage at lower costs. You can purchase four different levels of coverage for different amounts. For example, the option with the most extensive benefit will be called the “Platinum option”; and will cost more than the other three options. The “Bronze option” is the least expensive and offers less coverage. The costs for these and other options in Virginia’s Marketplace will be available on October 1 , the first day citizens can enroll for coverage that begins January 1, 2014.

More information on the exchanges can be found at HealthCare.gov, the Virginia Association of Health Plans, or www.timeforaffordability.org. You can also call 1-800-318-2596 for assistance. There will also be “navigators” that will assist people in negotiating the Marketplace. In this area, Navigators are provided through the Legal Aid Justice Center in Charlottesville, which won a competitive grant from the federal government to assist consumers on negotiating the Marketplace. The Virginia Poverty Law Center will have about twenty Navigators working statewide to help identify and help uninsured Virginians. There will be a toll-free number to help connect consumers with navigators in their areas.

We have seen some indication that the Marketplace is increasing competition and giving consumers a better deal. States like California, Maryland, and Vermont recently announced rates for some plans offered through the Marketplace that will be 20 percent less expensive than previously estimated. New York recently announced that the premiums for individuals enrolling in that state’s Marketplace could be 50 percent less costly than they are today.

In addition, the U.S. Department of Health and Human Services is launching a call center specifically designed to help small businesses. You can access it at HealthCare.gov and look for the “SHOP Marketplace”. This Marketplace will help businesses with fewer than 50 employees with questions they have about purchasing health care in the Marketplace. Employers who employ fewer than 50 persons are not required to provide coverage or pay a penalty.

There are other websites besides HealthCare.gov that have very good information about the health insurance marketplace. Virginia Poverty Law Center has a YouTube video that walks through the basics on the health insurance marketplace for Virginians, WebMD has a wonderful FAQ page on its website, as does the Kaiser Foundation, and Virginia Consumer Voices for Healthcare also has compiled some great information to help individuals prepare for and stay informed about the health insurance marketplace. To enroll, you may do so online through HealthCare.gov, or you may call the federal hotline, 1-800-318-2596. There is also help available to small business employers available through Kaiser Foundation, or the IRS, or simply calling the Small Business Health Insurance Options (SHOP) call center at 1-800-706-7893.

P.S. DON’T FORGET TO VOTE ON NOVEMBER 5!

Remember, just 40 days until the election. This year we elect our top elected officials in Virginia – Governor, Lieutenant Governor and Attorney General. In addition, all 100 House of Delegates seats are up for election, and there are many local elections on the ballots. The State Board of Elections of Virginia website has some useful tools for Virginia voters. You can register online (deadline to register to vote in this year’s election is October 15), verify your registration status, or change your registration information by using their online voter registration tool. You can use their interactive tool, Where Do I Vote, to locate your polling location. Finally, their Virginia Easy Voter Guide provides an overview of voter registration, what to expect and bring to the polls when you vote, specific instructions for military, overseas and college voters, and important contact information to find answers to your questions.

Filed Under: General Assembly 2013 Tagged With: Affordable Care Act - Virginia, Affordable Health Care, Medicaid expansion, Virginia Health Insurance Marketplace

The McDonnell Ethics Scandal

July 26, 2013 by David Toscano

The Governor and Attorney General’s Inappropriate Acceptance of Gifts

Rumors have been swirling about the possibility of Governor McDonnell resigning his position in the aftermath of the Star Scientific ethics scandal. His recent apology and return of the loans may lessen the pressure for resignation – unless other transgressions surface.

Nonetheless, the revelations have undermined McDonnell’s governorship and raise questions about the possible role Attorney General Cuccinelli played in keeping these facts from being disclosed to Virginia citizens.

It is clear that a $70,000 payment was made by Star Scientific owner Jonnie Williams to a corporation owned by McDonnell and his sister, and a $50,000 payment was made to Maureen McDonnell on May 23, 2011, the same day that Williams also made a separate payment of $15,000 to fund the wedding of McDonnell’s daughter. Of the $145,000 in gifts and loans disclosed thus far, the Governor has repaid $120,000, plus interest, and has apologized.

Despite the apology, an important question remains — did the Governor provide any special benefit to Williams and his corporation, Star Scientific, as a result of these gifts and/or loans? Press reports indicate that the Governor’s mansion was the site of a launch party of a supplement marketed by Star Scientific in August, 2011, and that Ms. McDonnell pushed this supplement at a Richmond hotel event in October, 2011 and flew to Florida in June, 2011 for meetings involving products produced by Star Scientific. There is also evidence that meetings were arranged between Star Scientific personnel and Virginia Secretary of Health and Human Resources, Bill Hazel, and suggestions that Hazel’s staff was offered a trip by Williams to visit a laboratory used by the company. Since a federal investigation is ongoing, other revelations may be forthcoming.

Attorney General Cuccinelli

The Attorney General has problems of his own. He bought and sold Star Scientific stock (one sale reaped a $4000 profit) and has been the beneficiary of Jonnie Williams’ largesse to the tune of $18,000. Like McDonnell, he initially failed to make disclosures as required by Virginia law, and failed to turn over the investigation of the Governor’s payments to a Richmond prosecutor until November, 2012 – eight months after his office became aware of Williams’ undisclosed wedding payment to the McDonnell family.

According to press reports that have not been denied, the Office of the Attorney General was notified and briefed about some portions of the Governor’s disclosure problems in March, 2012. These reports indicate that on March 21, 2012, the Attorney General’s office was provided information about Star Scientific’s relationship with the Governor, including the wedding contract by which Williams provided monies to pay for the caterer. Eight months prior in July 2011, Star Scientific filed a lawsuit against the Commonwealth of Virginia, although the Attorney General did not dismiss himself from the case until 2013. When the case was filed the Attorney General had a clear conflict of interest due to his purchase of $10,018.80 worth of Star Scientific stock in October 2010. The Attorney General did not disclose this fact until two years later in October 2012. In November, 2012, eight months after his office became aware of McDonnell’s gifts, the Attorney General quietly asked a Richmond prosecutor to review the Governor’s disclosure statements.

Why it took from March to November for the Attorney General to ask for this review is a mystery. And what, if any, additional information the Attorney General or his office acquired during that period that led him to delay reporting to the Richmond prosecutor is unclear.

If you would like to review a timeline of the scandal, click here

Proposed Ethics Reform

This is the second serious ethics scandal in Virginia politics within the last five years. In 2009, a powerful Republican legislator, Phillip Hamilton, was charged with a violation of federal bribery and extortion laws arising out of his efforts to create a job at a university for himself in exchange for monies being placed in the state budget to fund the program. He was convicted of bribery and extortion in 2011, and is now spending 9½ years in a federal penitentiary.

On the heels of that scandal, Democrats in the House of Delegates offered legislation to tighten disclosure laws and prevent scandals like this from happening in the future. Those proposals were summarily rejected by the Republican leadership, which also refused to further investigate the Hamilton affair. Granted, even if the proposals had been adopted, it is not clear that they would have prevented McDonnell’s transgressions since they applied only to legislators. There is little doubt, however, that we have a problem and many now believe that ethics reform should be at the top of the agenda in the next General Assembly. The best approach would be to have a bipartisan working group develop legislative initiatives that could pass both houses when we reconvene in January, but the politics of the Governor’s race may prevent this.

Reasonable reforms would likely include restrictions on the amount of gifts that a legislator, a member of the executive branch, or their immediate family could receive, a tightening of definitions related to corporate giving, requirements of more timely disclosure of larger gifts, greater sanctions for violations of our disclosure rules, and the creation of an ethics commission that would have the ability to hear complaints and issue findings. At present, Virginia is one of only nine states in the country that does not have such an ethics commission.

The McDonnell and Cuccinelli revelations are extremely troubling for a wide variety of reasons, not the least of which is what it does to the public’s view of whether they can trust their elected officials to do the right thing. Most legislators and elected officials strive mightily to conform to both the spirit and the letter of the law. The Governor’s apology may help, but it is clear from this experience that not simply the letter of the law must change, but also the thinking about the spirit behind it. It is a pleasure and honor to represent you in the Virginia House of Delegates.

As always, please feel free to contact me to share your thoughts and comments on matters before the Commonwealth.

Sincerely,

David Toscano

Filed Under: General Assembly 2013 Tagged With: Ethics reform

New Virginia Laws in Effect as of July 1, 2013

July 10, 2013 by David Toscano

July 1, 2013, marked the date on which legislation passed in the previous session took effect, including any changes in the budget. Included in these are the following:

  1. Various fees and taxes will be reformed as part of the recently enacted bipartisan transportation bill. As part of the bill, the gasoline tax of 17.5 cents per gallon has been replaced with a percentage based tax of 3.5% for gasoline and 6% for diesel (an equivalent of ten to eleven cents per gallon). Some have argued that this will mean that the price at the pump will decline, but since the price of gas is based more on the market than on the tax rates, it is hard to predict. Citizens will see a small increase in sales tax that is now designated for transportation. In Hampton Roads and NoVA, there will be additional taxes and fees, with the revenue designated for transportation initiatives in those regions. The bill also, for the first time, provides a dedicated source of monies for passenger rail. The result of the bill will be greater assistance for road and transit improvements throughout the state, including Albemarle and Charlottesville. One downside is the imposition of larger fees on hybrid vehicles, something which makes little sense to me and which we will likely try to repeal in the next legislative session. This is not a perfect bill, but is nonetheless significant as creating the largest influx of transportation money in two decades.
  2. Citizens can now be stopped and ticketed for texting while driving. Unlike the seatbelt safety law, it is now a primary offense meaning a police officer or sheriff can stop a driver if they see a driver texting while driving. Fines for first offenses will range from $25 to $125. So stop texting and driving.
  3. A two percent (2%) teacher pay increase goes into effect on July 1, conditioned on localities providing a local match. A raise is also included for University personnel.
  4. School divisions will be eligible to apply for school safety grants of up to $100,000.00 to purchase security equipment and technology.
  5. Businesses will now be able to donate equipment and machinery to community colleges and vocational schools, and be eligible for a grant of up to $5,000.00.
  6. Persons who financially exploit the elderly or incapacitated will be subject to harsher criminal penalties.

The big news of this month was, of course, the Supreme Court’s decision overturning the federal Defense of Marriage Act (DOMA). While this is an extremely significant court decision, it does not overturn Virginia’s constitutional amendment that prohibits same-sex marriage, a measure I did not support and favor repealing. Repeal will not be easy so long as the House of Delegates retains its current composition. Some of us are concerned that, in order to ensure they will have benefits derived from marriage, gay partners may now seek to relocate from Virginia into states that either allow gay marriage or recognize it. This would be detrimental to our state, and especially our business climate. To compete in a global economy, Virginia businesses need to recruit and retain talented and productive individuals and couples. Given our presently hostile laws, gay couples may choose to relocate to other states, or not come to Virginia at all. We have a long way to go to ensure that gay rights and partners are protected. I expect to see and support various non-discrimination bills that will be offered in the next General Assembly session, including provisions that will extend state benefits to gay partners.

Full List of New Virginia Laws in Effect as of July 1, 2013

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Filed Under: General Assembly 2013 Tagged With: Education, Financial exploitation of elderly, K-12 Education funding, Same-Sex Marriage, Virginia General Assembly Process, Virginia transportation

Reconvene Session Passes Transportation Plan, More Restrictions on Abortion

April 9, 2013 by David Toscano

The “Veto” Session commenced at noon on Wednesday, April 3, 2013, and finished at 1:00 a.m. the next morning. It is hard to believe that we could take so long, but most of our time was focused on electing new judges around the Commonwealth in a Special Session.

The Governor made numerous recommendations for changes in bills that had been previously passed by the General Assembly. The most notable of these involved modifications in the transportation bill, which had been passed by a bipartisan coalition in the House and Senate. The Governor’s changes reduced the size of the plan somewhat and included a small reduction in the “hybrid tax”; the $100.00 fee was reduced to $67.00. The fiscal impact of that action was not large, but was viewed as a symbolic change designed to mollify some of the critics of the original bill. Most of the major increases in revenue remained, including the provision to create a dedicated source of revenue for passenger rail. I was happy to advocate and vote for this bill as the most significant advancement in the transportation funding that has been made in several decades (my speech on the original measure is available here). The measure raises about $1 billion extra per year and includes greater sums for transit, road maintenance, and passenger rail. Finally, the Governor made some changes designed to address concerns about the constitutionality of certain measures in the bill that provide some additional revenue for Northern Virginia and Hampton Roads. Democrats again provided the margin of victory for final passage, as numerous “no tax pledge” Republicans deserted the Governor by failing to support the measure.

The Governor made some changes in budget language that may assist those of us who seek to expand Medicaid in the Commonwealth. My position continues to be that Medicaid expansion is good because it will create 30,000 new jobs in Virginia, insure approximately 300,000 Virginians who do not have coverage at present, allow the return of billions of dollars in Virginia tax monies that would otherwise go to states throughout the country that have embraced Medicaid expansion, and will be 100 percent funded by the federal government for the first several years of the expansion. It will reduce pressure on our emergency rooms, which have become the “health insurer of last resort” for many of the poorest in our region. Using emergency rooms for primary care is very inefficient and raises costs to taxpayers (the state reimburses hospitals for emergency room bills that are not covered by insurance and that individuals are unable to pay) and to those of us who have private insurance coverage.

A day in Richmond at the General Assembly would not be complete without a debate on social issues. This time it was the Governor who was pushing the social agenda, as he inserted language into a bill that would prohibit private health insurance companies from offering health care coverage for abortion as part of private insurance that would be purchased by individuals within the new health care marketplace. A majority in the House and Senate embraced the Governor’s language, despite the arguments of many Democrats (myself included) and some Republicans that this was an unnecessary and unreasonable intrusion into the marketplace, where private buyers and sellers negotiate the terms of the coverage that companies provide. Our further concern is that it could drive certain citizens away from the health exchange, with the result that either they do not get any coverage at all, or because the insurance pool would become smaller, the cost of insurance would rise for other people who seek it. This is not good social policy in a Commonwealth seeking to lower the cost of insurance for everyone and looking to the marketplace for solutions.

Finally, the 16th Judicial Circuit, which serves this area, got two new judges late in the evening. The first is Dale Durrer, who resides in Culpeper and will serve on the General District Court, replacing the Honorable Roger Morton, who recently retired. The second is Claude Worrell, II, an Assistant Commonwealth’s Attorney in the City of Charlottesville, who will take the seat previously occupied by the Honorable Dwight Johnson, who retired in January. I expect that these gentlemen will make fine judges, and am very pleased that we were able to retain these judgeships for our community.

With the completion of the Session, my attention returns to constituent service, my law practice, and the fall elections. It is a pleasure and honor to represent you in the Virginia House of Delegates. As always, please feel free to contact me to share your thoughts and comments on matters before the Commonwealth.

Sincerely,

David

Filed Under: General Assembly 2013 Tagged With: Affordable Health Care, Medicaid expansion, Reproductive Choice, Virginia General Assembly Process, Virginia transportation

Session Ends with a Bang

February 26, 2013 by David Toscano

The 2013 session of the Virginia General Assembly adjourned on Saturday, February 23rd at 5:21 p.m., with the passage of what is arguably the most significant legislation with which I have been involved since I took my seat in 2006.

This session will be remembered primarily for two issues – transportation and Medicaid.

Transportation

When this session began on January 9, 2013, few would have predicted that we would ultimately pass the most significant transportation plan since 1986. This was not easy, and it almost unraveled at the last minute due to the intervention of our Attorney General, who had opposed any increases in transportation revenues, even the inadequate proposal that the Governor made in January. The Governor’s initial proposal failed to raise sufficient revenue for transportation, was built on an assumption that we would receive money due to federal action that no one was sure would occur (enactment of the Marketplace Equity Act, a.k.a. “internet sales tax”), and took the wrong approach on policy grounds by eliminating the gasoline tax while raising the sales tax. I originally opposed this proposal, and voted against it when it was first considered on the House floor.

But then things changed dramatically.

Frequent direct contact with the Governor’s office and the willingness of the Democratic Caucus to stick together on what was needed for this package were instrumental in modifying the plan as it continued through the legislative process. What ultimately emerged was a transportation plan which, while not perfect, included significant new revenues, approximating $1.4 billion extra per year for transportation construction, maintenance, transit, and rail. I have described this package in greater detail in a letter that I have sent to those who have contacted me on this matter. As a result of these significant and sustainable increases in revenue, I supported this bill. You can view the clip of my speech on the House Floor supporting the bill on YouTube.

One of the most heartening elements of this session was the degree to which the House Democratic Caucus was able to make the difference in passing the transportation plan. Without House Democrats, this plan would not have passed — there were simply not sufficient Republican legislators who were willing to support it. This is one of the untold stories of the 2013 session and one that should not go unnoticed for the future. While our numbers in the House are not as large as we would like, we clearly made the difference in a plan that is the most significant passed in the last twenty-five years.

Medicaid Expansion

On the Medicaid front, many of us argued that Medicaid expansion makes good economic sense for the Commonwealth while allowing more than 250,000 Virginians to get access to health insurance. Many hospitals and medical professionals in the Commonwealth argued for expansion because it would create 30,000 jobs, bring approximately $9.9 billion to the Commonwealth, and would provide a vehicle to discourage individuals without insurance from using the emergency rooms of our hospitals to meet their primary care needs – a costly way of providing care and one that ultimately raises costs for every Virginian who buys private insurance or is insured through their job. You can view my speech here.

The Governor and conservative members of the General Assembly, primarily in the House, vehemently opposed Medicaid expansion, feeling that it would place greater costs on the Commonwealth and would provide legitimacy to “Obamacare.” This is their sentiment despite assurances that 100 percent of the cost would be paid by the federal government for the first 3 years, and then 90 percent in future years. At present, the federal government pays 50 percent of Medicaid expenses.

Many of us further argued that failure to expand Medicaid would mean that Virginia tax dollars would be used to help fund Medicaid expansion in states who had decided to do so. Nationally, many states with Republican governors and statehouses, including Arizona, Ohio, and most recently, Florida, have decided that Medicaid expansion makes good economic and human sense and, therefore, have embraced expansion. Governor McDonnell, however, has consistently said no. What emerged in the final days of the General Assembly session was reform language that was placed in the budget to create a commission to determine whether and when reforms had been enacted sufficient to justify expansion in Virginia. It is not the approach that I would have taken, but it represented the best that we could do to move expansion forward.

At the last minute, however, Attorney General Cuccinelli issued an opinion that he believes such an approach is unconstitutional. This opinion had the effect of almost derailing passage of both the budget and the transportation plan. Cooler heads prevailed, and the Medicaid expansion language was accepted by the House and the Senate, enabling both the budget and the transportation plan to pass.

***

The significance of transportation and Medicaid overwhelmed other measures that were considered during this session. It was disheartening to watch as important bills were not passed, notably measures to restore voting rights to non-violent felons, eliminate workplace discrimination based on sexual orientation, and make our streets and roads safer for pedestrians and bicyclists. Future updates will detail these and other pieces of legislation, including changes in energy policy, some educational reforms, pay raises for teachers and faculty, prohibitions against texting while driving, and a new program to allow vital records to be issued by DMV.

I look forward to being back in Charlottesville with family and friends, and resuming my law practice. As House Democratic Leader, I will be traveling the state this year in an effort to increase the number of delegates who share our values in the General Assembly.

It is a pleasure and honor to represent you in the Virginia House of Delegates. As always, please feel free to contact me to share your thoughts and comments on matters before the Commonwealth.

Sincerely,

David

Filed Under: General Assembly 2013 Tagged With: Affordable Health Care, Medicaid expansion, Virginia General Assembly Process, Virginia transportation

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