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).