|
E-mail this page to a friend!
Suit Says Bill Signed by Bush Cutting Medicaid Not
the One Passed by House
Elder Law Attorney Sues over New 'Law' Affecting
Medicaid Transfers
By
ElderLawAnswers.com
Feb. 20, 2006 - An Alabama elder law attorney has
filed suit in federal district court challenging the constitutionality
of the Deficit Reduction Act of 2005 (DRA), which President Bush signed
February 8, on the grounds that the bill signed was not the same bill
that the House of Representatives passed. The Constitution requires that
a bill must pass both houses of Congress and be signed by the President
in identical forms to become law.
| |
Related Stories |
|
| |
House Passes Budget Bill with
Biggest Cuts in Medicaid,
Medicare
Cuts $99.3 billion over 10 years - 27% from Medicaid,
23% from Medicare.
Feb. 1, 2006 – It's done. The House has passed and
sent to President Bush the budget reconciliation bill that was strongly
opposed by most senior citizen advocacy groups and newspaper editorials
due to the deep cuts it makes in Medicaid and Medicare. It was a very
close vote – 216 to 214. The bill cuts the budget by $38.8 billion over
five years – 50 percent of the cuts over 10 years are in Medicaid and Medicare.
Read more...
Read more on
Senior Politics |
|
The controversy over the purported new law, which
among other provisions would place severe new restrictions on the
ability of the elderly to transfer assets before qualifying for Medicaid
coverage of nursing home care, has also touched off a partisan battle in
the House. Democrats do not appear to be backing down from their
insistence that the legislation be voted on once again, a development
that House Republicans – who were barely able to muster the votes needed
for passage -- would very much like to avoid.
"They know this is wrong,'' House Democratic Leader
Nancy Pelosi charged. "If this isn't stopped, they can send anything to
the President. This is unconstitutional.''
The Back Story
The bill's troubles stem from provisions regarding
Medicare payment for oxygen equipment used in the home. Up till now,
Medicare has paid for the rental of such equipment as long as the
patient needs it. But in the Senate version of the bill, which narrowly
passed in December with Vice President Dick Cheney flying back from the
Middle East to cast the deciding vote, payment for oxygen equipment was
capped at 36 months. At the same time, the Senate bill capped payments
for other equipment rented by Medicare beneficiaries, such as
wheelchairs, at 13 months.
When the Senate sent the bill to the House,
however, the 36-month limit for oxygen tanks was mysteriously inserted
into the section of the bill dealing with the other equipment, so 36
months replaced 13 months – an estimated $2 billion error.
This was the version of the bill that passed the
House by two votes. The Senate clerk then corrected the error and this
version -- the version only the Senate had passed -- was apparently
certified by House Speaker J. Dennis Hastert (R-IL) and Sen. Ted Stevens
(R-AL), the president pro-tempore of the Senate, and sent to the
President for his signature.
Senate Democrats agreed to pass a follow-up measure
affirming that Congress had intended to set the rental period for the
other equipment at 13 months, but House Democrats are not being so
accommodating. They would like to force another vote, which would give
advocacy groups for those affected by the bill's nearly $40 billion in
program cuts more time to convince wavering Republicans to vote against
it this time.
While believing that a House revote would be a
"great victory," New York ElderLawAnswers member attorney
Bernard Krooks thinks such a revote is unlikely. Krooks, who is a
past president of the National Academy of Elder Law Attorneys, said that
"the way this Republican leadership has done business over the last six
or seven years, I would not be surprised if it got done without another
vote." If a revote is to happen, Krooks sees it coming through the
courts, not Congress.
The Lawsuit
If that is the case, it may well be thanks to
Jim Zeigler, an elder law attorney in Mobile, Alabama, who has filed
a lawsuit in the U.S. District Court for the Southern District of
Alabama challenging the law's constitutionality.
"I don't know whether to have my clients comply
with the post-February 8 version that I am alleging is
unconstitutionally enacted, or the pre-February 8 law, which obviously
is constitutional," Zeigler told ElderLawAnswers. "I'm in need of a
declaratory judgment so I'll know."
Zeigler, who was a Bush delegate to the Republican
National Conventions in 2000 and 2004 and served on Bush's legal team in
Florida in 2004, is currently deciding whether to seek "injunctive
relief" from the court – that is, to ask the court to block
implementation of the new "law" until the matter can be decided. Once he
makes that decision, he said he belives that the court will quickly rule
on his suit.
Zeigler said he is aware of an 1892 ruling by the
Supreme Court,
Field v. Clark, 143 U.S. 649 (1892), that may affect the outcome of
his action. In that case, the Court ruled that once a bill is deposited
in the public Archives, a court should not look behind the President's
signature to question whether it in fact passed both houses. Zeigler is
confident that he can demonstrate that Field is distinguishable from the
case at hand.
"I give credit to Jim Zeigler for filing the
lawsuit," said Krooks. "I think he absolutely does have standing as
somebody who represents clients who are seniors. He's put in a position
of not knowing whether he should use pre- or post-DRA law, so I do hope
the court addresses the issue and listens to the arguments on the merits
so we can get a resolution of it."
Living in Limbo
In the meantime, Krooks said his firm is operating
on the assumption that the DRA is the law. But he noted that subsequent
legislative activity, or a possible new presidential signing, could
change the law's effective date.
A crucial question seems to be when the Republican
leadership knew they had a problem with the bill. According to a
Congressional Quarterly article cited in the blog
Balkinization, the mistake apparently was discovered in mid-January,
but was not then corrected because "no agreement could be reached
between the House and Senate about how to resolve the difference from
the Senate version other than passing a corrective measure after
enacting the reconciliation bill."
"I know the speaker knew this was an invalid bill
and still gave the go-ahead to send it to the President,'' Pelosi said.
Her demand for an ethics investigation into the bill's passage was
shelved on a party-line vote.
> To
read Zeigler's complaint,
click here.
> To
read an article in The Hill about the ongoing clash in Congress over the
bill's constitutionality,
click here.
> To
read the latest version of this story at ElderLawAnswers.com -
click here.
Click here to Search SeniorJournal.com for more on
this subject
Click to More Senior News on the
Front Page
Copyright: SeniorJournal.com |
