DRA Confronted with New Challenges

WASHINGTON–The Deficit Reduction Act is facing new opposition
in Congress and in court.

A House bill in the works proposes to eliminate the DRA’s
controversial oxygen provision, and a third lawsuit declaring the
law unconstitutional has been filed by a Michigan congressman.

Since the DRA became law Feb. 8, providers have been up in arms
over a provision that caps Medicare rental of home oxygen equipment
at 36 months, then transfers title to the beneficiary (see HomeCare
Monday, Jan. 9).

In response, Rep. Joe Schwarz, R-Mich., is in the process of
drafting a bill that would eliminate the oxygen provision from the
DRA, American Association for Homecare Chairman Tom Ryan announced
at the association’s Leadership Conference last week in St.
Petersburg, Fla. Dubbed the Oxygen Patient Protection Act, “it’s a
very simple bill” that would repeal the DRA’s entire oxygen
provision, Ryan said.

Schwarz, a physician, will co-sponsor the bill with Rep. Tom
Price, R-Ga., also a physician. Ryan said its importance is to
raise awareness about the provision’s effects among members of
Congress in anticipation of a major Medicare legislative package in
2007. “We need to set the tone and get the message out that this is
a beneficiary issue,” Ryan said, adding that federal lawmakers need
to understand that oxygen “should not go to rent-to-purchase. The
onus should not be on the beneficiary.”

And on the heels of two other lawsuits challenging its
constitutionality, Rep. John Conyers Jr., D-Mich., filed a new suit
against the DRA on April 28 claiming the law is unconstitutional.
Because the Constitution dictates that each congressional chamber
pass bills in identical form, a legal debate emerged when the
Senate and House approved different versions of the bill due to a
typo in the section dealing with DME capped rental.

“Once again the administration is playing fast and loose with
the Constitution. Anyone who has passed the sixth grade knows that
before a bill can become a law, both houses of Congress must
approve it,” Conyers said. “That the Bush administration is now
saying otherwise underscores the Constitutional crisis we are
facing in this country. Over 200 years of legal precedent dictate
that such discrepancies can be handled through simply refiling the
paperwork or revoting the whole bill.”

Ten other House Democrats have joined Conyers in the suit: Reps.
John Dingell, Charles Rangel, George Miller, James Oberstar, Barney
Frank, Collin Peterson, Bennie Thompson, Louise Slaughter, Fortney
“Pete” Stark and Sherrod Brown.

Consumer watchdog group Public Citizen and Alabama attorney Jim
Zeigler both filed suits earlier this year claiming the DRA is
unconstitutional for the same reason (see HomeCare
Monday, March 27).