In the midst of numerous proposals before the Senate regarding legislation concerning the legalization of illegal aliens has arisen a little known provision of the recently signed 2005 Deficit Reduction Act. On February 8, 2006, President George Bush executed a bill into law which now requires recipients of Medicaid benefits to provide either an original birth certificate or passport in order to apply for or to continue to receive their health care benefits, commencing July 1, 2006.

The Medicaid program, available to American citizens who fall into a specified low income bracket, provides health care to adults and children, as well as the elderly and those in nursing homes. While much hand wringing and spin continues in the U.S. Congress regarding how to best deal with the status of illegal aliens, which directly impacts costs of U.S. government entitlement programs, this new requirement has yet to be discussed. As the result of the newly passed Massachusetts universal health care plan, which will include the Medicaid program, the new provision was just publicly revealed.

However, the present requirements for Medicaid require no such documents, relying only upon a signature of the applicant to certify whether or not they are American citizens. And as a result of the unaccountability for Medicaid fraud abuse over the past several decades, the U.S. government may be penalizing the vast majority of law abiding citizens, according to numerous patient advocates. But the issue is more about the continuing lack of enforcement of U.S. immigration law rather than an attempt to cut down on Medicaid fraud.

According to Families USA, a consumer advocacy organization, the disabled, the mentally ill, the homeless, the elderly and the chronically ill will unfairly suffer as the result of this new proviso, as they would have difficulty accessing copies of birth certificates, and would be far less likely to own a U.S. passport. Therefore, they will be unfairly denied necessary health care beginning as early as July 1st. Meanwhile, hospital emergency rooms may still not turn away any person of any status nor may they ask the legal status of any patient, according to the Emergency Medical Treatment and Labor Act of 1985.

While patient advocates may be correct regarding the most vulnerable being put at risk, on balance it would seem that without addressing social services access requirements across the board, with respect to illegal aliens, it does seem quite unfair to put this burden only upon Medicaid recipients at this late date in 2006. Furthermore, there are no set mechanisms yet in place nor systems between federal and state governments for enforcement of the law. Such a sweeping change should require administrative oversight by the Center for Medicaid and Medicare and require necessary outreach to patients for this purpose well ahead of such changes.

But perhaps for those desperately trying to get copies of their birth certificates at this time, there could be some breathing room as another debate brews relative to the validity of the law itself, based upon the U.S. Constitution. When President Bush signed S. 1932 on February 8th, according to House Speaker of the U.S. House of Representatives, Dennis Hastert, the President actually signed a different version of the bill than the House of Representatives actually passed.

Representative Henry Waxman (D-CA) on March 30, 2006 stated, I have learned that the Speaker of the House advised the White House of the differences between the House-passed bill and the bill presented to the President before the President signed the legislation. Representative Waxman is now calling for a Resolution of Inquiry which requests all documents relative to the 2005 Deficit Reduction Act which the President signed on February 8th. So far the White House has failed to respond.

Whether or not Representative Waxman truly cares about the Constitution or is doing that which is politically expedient for himself, is of concern. Firstly, the discrepancy in the Senate Bill signed was different in substance from the House Bill. It impacts some $2 billion in spending for durable medical equipment such as wheelchairs and oxygen for those in the Medicare program, which provides health care to the elderly and the disabled. At issue, is the length of leases for durable medical equipment which was 36 months in the House version and 13 months in the Senate version.

During transmission of the final bill to the President, the Senate Clerk made a change to the legislation. It no longer contained the Senate amendment which provided for 36 months for oxygen equipment. The Senate Clerk upon learning of the mistake advised House Republican leaders in January 2006, well before the date of February 8, 2006, the date the President signed the bill. The error failed to be corrected. But according to Article I, Section 7 of the U.S. Constitution, both the House and the Senate must include the same substance and version of a bill which is required for presentation for signature by the President.

So the entirety of the law has been put in jeopardy and could eventually wind up in the Supreme Court, as there exists precedent. In the case of Field v. Clark, 143 US 649 (1892) the Court wrote that the burden would be to prove that the House Speaker and President were deliberate and purposely signing the wrong bill. That in fact is what Waxman contends, when on March 15, 2006 he wrote a letter to then White House Chief of Staff, Andrew Card, seeking information on the Presidents knowledge of the bills constitutional infirmity.

While Waxmans inquiry provides interesting fare for a Constitutional Law class, the scope of the 2005 Deficit Reduction Act is perhaps getting lost. The new Medicaid documents requirement being served up as a tightening of immigration law enforcement is almost laughable. And those patients in wheel chairs and those patients requiring oxygen will most likely not be notified of a cap on their benefits until after that period of 13 months expires. Previous to the 2005 law, wheelchairs and oxygen and durable medical equipment were provided patients indefinitely.

If indeed the President made an error, it should be addressed if anything, to give clarity to the Medicaid and Medicare patients it impacts. And furthermore, should Representative Waxman pursue the legality of the new law, that he would take the approach that it was a procedural oversight which should be either amended appropriately or pursued in the present session of Congress. But it will require the cooperation of both the Congress and the Executive branch of government, keeping in mind the most vulnerable of U.S. citizens. For there must be some measures of government which transcend politics.