Lawsuit to Invalidate Deficit Reduction Act Pending

March 2, 2006

An Alabama lawyer has filed a lawsuit seeking to void the $39 billion budget savings act signed into law February 8 by President Bush because of a clerical error that resulted in the House and Senate passing different versions of the bill.

It is said that it is not a valid law because it was not passed in identical form by both chambers. The problem is that at this time it is difficult to represent older folks who are intending to get Medicaid nursing home eligibility because it is unclear on whether to advise them to follow the post-Feb. 8 law that is unconstitutional or the pre-Feb. 8 law that is constitutional.

No hearing date has been set and it is unclear if the case will even be awarded a hearing. Several consitutional law scholars have predicted that if given the chance, the courts could rule that the act violates the bicameral clause of the Constitution, which requires both chambers to pass identical legislation before the president signs it into law.

It is anticipated that elderly people directly affected by the new law will join the suit shortly to enhance the chances that the court will grant standing in the case. The issue arose as a result of an error by a Senate clerk that changed a portion of the bill limiting rentals of durable medical equipment other than oxygen equipment to 36 months instead of the 13 months that was in the measure passed by the Senate. The clerk then changed the number back to 13 after the House voted on the bill.

The Congressional Budget Office, in response to a request by House Democrats, has estimated the difference between a 13-month limit and a 36-month limit on the medical equipment to be $2 billion over five years.

This provisoin in the law will penalize seniors who give money to their church, to their relatives or to charity by totaling those gifts over a five-year period and penalizing them, making them ineligible for Medicaid coverage.

Source: Steven T. Dennis, CQ staff