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An error in President Bush’s Deficit Reduction Act has proven a Pandora’s box, triggering lawsuits that question the legality of everything from new Medicare reimbursements to increases in court filing fees. At the center of this legal snafu? A typo that caused the House and Senate to approve slightly different versions of the bill before it was signed into law. The mistake dealt with reimbursements for medical equipment rentals for Medicare patients. The Senate version included 13 months of funding, but a clerk mistakenly changed the wording to read 36 months, which is what the House approved. Bush signed the 13-month version. The mistake has caught the attention of lawyers and lawmakers, who, if successful in proving the act unconstitutional, can nullify the act, including parts they wish to alter. Plaintiffs-who in order to file suit have to prove that they were affected by the act-include an Alabama lawyer who believes that the law will hurt his elderly clients; 11 Democratic congressmen who are challenging the constitutionality of the act; and Public Citizen, a consumer watchdog group upset over the $100 filing fee increase for federal civil litigation. The U.S. Department of Justice has declined comment on any litigation involving the act. In recent months, judges in New York and California have ruled against challenges to the constitutionality of the Deficit Reduction Act, holding that they do not have the authority to interfere in legislative procedures. The New York case is on appeal. OneSimple Loan v. U.S. Secretary of Education, No. 06 Civ. 2979 (S.D.N.Y); California v. Leavitt, No. CIV S-99-0355 (E.D. Calif.). $100 million pulled “The Constitution requires that both houses of Congress pass exactly the same bill,” said Murray Klein of Reed Smith’s Princeton, N.J., office, who is challenging the act on behalf of 15 Tennessee hospitals. “Plus, the president knew when he signed that bill that it had not passed both houses . . . but he signed the bill anyhow.” Klein is seeking to recover $100 million in hospital Medicare reimbursements that have been put on hold since the passage of the act. Last September, a judge awarded the hospitals $100 million in additional Medicare reimbursements. Cookeville Regional Medical Center v. Michael O’Leavitt, No. 1:04 CV 01053 (D.D.C.). But in February, days after the Deficit Reduction Act was approved, the government filed a motion to have the decision removed, arguing that a provision in the act precluded it from having to pay the additional money. The hospitals maintain that section of the act doesn’t apply to their case. “And even if it did, the budget act is illegal,” Klein asserted. In court documents, the government has defended the constitutionality of the law, arguing that it has been signed by the leaders of both the House and Senate. “Once an enrolled bill has been attested to by the Speaker of the House and President of the Senate-as both sides agree is the case with the Deficit Reduction Act-its authentication as a bill that has passed Congress should be deemed complete and unimpeachable,” the government argued in court documents. The government also has asserted that the courts should not “look behind an enrolled, certified bill to evaluate the inner workings of Congress. “Courts must instead defer to the attestations of congressional leaders as to what has been duly enacted, out of respect for the coequal legislative branch of government,” the government said. That argument outraged Alabama attorney Jim Zeigler, who called the act “a constitutional screw-up,” and is suing the government to have it nullified. Zeigler v. Gonzalez, No. 1:06-CV-00080-CG-M (S.D. Ala.). An elder-law attorney in Mobile, Ala., Zeigler claims that the act affects him as a lawyer who advises the elderly on financial matters. Specifically, the act has a new provision that penalizes gift-giving five years before a senior goes into a nursing home. The government argues that Zeigler has no standing. “Even if Zeigler were to be injured in the way that he claims, which is unlikely, such injury would be common to all lawyers with clients affected by the Act . . . .And if uncertainty in the law is sufficient to confer standing on Zeigler, then every lawyer with a theory that a law is unconstitutional or invalid would have standing to litigate such a claim,” the government said in court documents. It has filed a motion to dismiss Zeigler’s case.

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