Stimulus Bill Is Really Lawyers’ Full Employment Act

Published March 3, 2009

A law firm announced last week it was building a special legal team to help its clients acquire some of the $787 billion in the stimulus bill. “We recognize this is an extraordinary opportunity to help advance the interests of our clients,” said team leader Doug McGarrah of Foley Hoag LLP, with offices in Boston and Washington, DC.

The clients will need all the help they can get, because deciphering the legal complexities of the stimulus bill is going to occupy lawyers for decades.

Difficulties start with trying to read the bill, which Congress didn’t bother to do before voting on it. In hundreds of instances the bill revises the text of existing law but doesn’t include the previous text. For example:

“Section 247 of the Trade Act of 1974 (19 U.S.C. 2319) is amended–(1) in paragraph (1)–(A) by striking ‘or appropriate subdivision of a firm’; and (B) by striking ‘or subdivision’; (2) in paragraph (2), by striking ’employment–‘ and all that follows and inserting ’employment, has been totally or partially separated from such employment. …'”

That’s pure gibberish, and it seems unlikely such obfuscation is hiding things people would like. There are hundreds of such instances in the bill, meaning its 1,100 pages actually constitute tens of thousands of pages of text.

The next question is what the bill’s language means. For example, it directs the Commerce secretary to spend $50 million for economic adjustment assistance, giving priority to areas that experienced “sudden and severe economic dislocation and job loss due to corporate restructuring.”

What does “sudden” mean? A month ago? A year ago? What does “severe” mean, and how is it measured? What does “corporate restructuring” mean–reorganization, or dissolution of one part of the company? And so on. It’s a fascinating exercise in statutory construction for lawyers, and bad news for clients paying the legal bills.

The part of the stimulus bill with perhaps the most legal complications is the Health Information Technology provisions, which are entirely new law. The first clue to its legal complexity is its conflicting goals–maximum sharing of electronic patient data to achieve health efficiency coupled with maximum patient privacy. Already you can see what’s coming.

Among the goals of this part of the bill is to create private electronic records for every patient in America by 2014. Penalties for privacy violations are severe, ranging from $25,000 to $1.5 million. But what exactly is a breach of patient privacy? A breach happens when unauthorized disclosure, acquisition, and use takes place, the new law says. But there is no breach if the violation is “unintentional” and happened in good faith, or if the disclosure is “inadvertent.”

The push for electronic records is intended to improve individual patient health care, so those records can’t be sold, the law says. Except they can indeed be sold for public health activities, research, or when the Secretary of Health and Human Services says it’s “necessary and appropriate” to sell them. So if your records are sold, was the reason lawful or not? Pay a lawyer big money if you want to find out.

This is just a glimpse of things to come, and it seems likely more issues will arise over time. There’s only one solution: When you go to the doctor, take your lawyer with you.

Maureen Martin ([email protected]) is senior fellow for legal affairs at The Heartland Institute.