From Westworld to U.S. Prisons: Reframing the Debate on the Right to Health

Is there a “Right to Health?” For many countries in the world, including Latin American countries like Brazil, the answer is easily in the affirmative. Similarly, in the hit HBO show Westworld, the “hosts” (androids on the verge of discovering consciousness) also possess a right to health. How so? Despite atrocious cruelty the human “guests” constantly inflict upon them, the company that runs Westworld maintains a highly extensive, functional “universal health care system” that employs the latest medical technologies for androids to take care of any health problems of all damaged hosts. The efficiency of the system is breathtaking: a cowboy host with 20 bullet wounds and a broken arm could be fully restored overnight; when the sun rises the next morning, the host returns to the simulated reality as if nothing happened.

Of course, the right to health in Westworld is not a result of democratic deliberations or judicial activism that invokes the UDHR or related treaty obligations. Instead, it originates in the sheer necessity of running a seamless alternate reality that requires good maintenance of the hosts, whom the Board depend on to please the guests and maximize the company’s profits. In other words, the physical wellbeing of the hosts is intrinsically tied to the functioning of the entire Westworld machinery and its profitability. Fixing them quickly and adequately allows them to return to their respective, pre-determined roles in a complex narrative with countless plots and subplot twists meticulously designed by their human masters. Continue reading

Ireland’s Abortion Referendum and Medical Care in Pregnancy

By Clíodhna Ní Chéileachair

This week, Ireland made international headlines as the governing political party announced a date-range for a referendum on the Eighth Amendment to the Irish Constitution, the provision which recognizes a fetal right to life, and places it on an equal footing to the right to life of the woman carrying the fetus. The move wasn’t a surprise to Irish voters – the referendum had been promised by Taoiseach Leo Varadkar since his election last June, and comes after decades of protest and organization by a multitude of activist groups, protesting what they view as an archaic, unworkable and agency-destroying constitutional provision that has led to the exporting of abortion care for Irish woman to the UK and Netherlands, and the deaths of women in Ireland. The implications of the Eighth Amendment for access to abortion care are obvious enough – it is illegal in almost all cases. Less prominent has been the pronounced effect that this constitutional ban on abortion has had for medical treatment and care in pregnancy, where the doctor involved is, constitutionally speaking, treating two patients with equal rights to life.

The only scenario in which an abortion in Ireland is legally permissible is in cases where the woman’s life is at risk from the continuance of the pregnancy. In all other cases, including cases where the fetus is non-viable, where the pregnancy is a result of rape or incest, or where the fetus will risk the health of the woman, but not her life, abortion is illegal. Criminal punishment for illegally procuring an abortion runs to a prison term of 14 years, which includes doctors who provide illegal treatment. Women who can afford it travel to the United Kingdom to avail of abortion services there, but doctors in Ireland cannot legally refer their patients to clinics in the UK, even in cases where continuing the pregnancy risks the health of the woman. It is unknown how many women have ended a pregnancy with illegal, imported abortion pills.

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Medical Bills are Open-Price Contracts: A Victory for the Little Guy

This blog has often covered the problem of outrageous medical bills, and explored whether patients have a responsibility to pay the balance on charges that are not covered by insurance.  One common pattern is that the patient agrees to pay “all reasonable charges” when they arrive at the emergency room or other provider, and then months later receives an incomprehensible bill for seemingly outrageous amounts.  The costs of the same healthcare can vary wildly from provider to provider, even in the same locale, and there seems to be little rhyme or reason.  (This is a common refrain of Elizabeth Rosenthal’s 2017 book.)

According to very basic contract law, when the agreement between a buyer and seller does not specify the prices to be charged (aka an “open price contract”), the seller may not demand more than a “reasonable” amount.   Years ago, I was involved in nationwide litigation against non-profit hospitals, raising this theory and alleging that their billing practices contradicted their state and federal “charitable” tax exemptions, since they were driving poor people into bankruptcy and foreclosure.  That litigation had a few notable wins, when several hospital systems agreed to adopt explicit charity care policies and stop some of the more egregious practices, such as putting liens on their patients’ houses.  Some of these reforms became an industry standard and then part of the Affordable Care Act.

Overall, however, this litigation was challenging, because courts tended to hold that the reasonableness of each patient’s medical bills had to be litigated individually – often with expert witnesses and comparable data from the healthcare provider and other competitors.  With only a few thousand dollars at stake for each patient, the courts’ refusal to aggregate the litigation left many consumers without an effective recourse to challenge their unreasonable bills. Contingent-fee attorneys tend to look for larger stakes to make their investment of time and expenses worthwhile. Continue reading

Autopsy of a Failed Health Insurance Experiment: Did It Die of Natural Causes, or Was It Murdered?

By Anthony Orlando

It was just another week for the Trump administration. A senior official resigned after admitting to major ethics violations, the President insulted millions of innocent brown-skinned Americans on Twitter, and quietly—so quietly that almost no one noticed—the Department of Health and Human Services pulled another Jenga block out of the teetering tower that is the Affordable Care Act. Fortunately, it did not fall.

But it did become more expensive. And in that understated tragedy, we find our mystery: Was that HHS’s intent all along?

It all started back in February when Gov. Mary Fallin announced that Oklahoma would submit a 1332 waiver request to the Centers for Medicare and Medicaid Services. At the time, no one really knew how 1332 waivers would work. All they knew was that Oklahoma needed to try something different.

Oklahoma had the same problem that a lot of heavily rural states had. Even with the subsidies in the ACA, it wasn’t very profitable for health insurers to compete in many counties. Sparsely populated areas have always been harder to service. It’s why Lyndon Johnson led the charge to electrify Texas, why rural phone rates went up after the courts broke up Ma Bell, and why small-town Post Offices are closing around the country. Add in the fact that rural Americans pose higher health risks on average, and it’s not hard to see why insurers are wary of setting up shop in these communities. Continue reading

What’s Next for the ACA?: A Lecture by Larry Levitt

What’s Next for the ACA?: A Lecture by Larry Levitt
October 3, 2017 12:00 PM
Wasserstein Hall, Room 1010
Harvard Law School, 1585 Massachusetts Ave., Cambridge, MA

Join Larry Levitt for a talk about the future of the Affordable Care Act and health care in America.

Larry Levitt is Senior Vice President for Special Initiatives at the Kaiser Family Foundation and Senior Advisor to the President of the Foundation. Prior to joining the Foundation, he served as a Senior Health Policy Advisor to the White House and Department of Health and Human Services. He holds a bachelors degree in economics from the University of California at Berkeley, and a masters degree in public policy from Harvard University’s Kennedy School of Government.

This event is free and open to the public.

Sponsored by the Center for Health Law Policy and Innovation, the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, and the Harvard Health Law Society, all at Harvard Law School.

Triple Canopy and Evolving Standards of Materiality Under the Civil False Claims Act (FCA)

By Joan H. Krause

[Cross-posted from L3: Long Leaf Law Blog]

In Universal Health Services v. United States ex rel. Escobar (UHS), the Supreme Court upheld the Civil False Claims Act (FCA) theory of “implied certification,” under which the submission of a claim for reimbursement “implies” that the claimant is in compliance with the statutes, regulations, and contract provisions necessary for that claim to be paid. Escobar was filed by the parents of a young woman who died after receiving Medicaid-covered mental health treatment from a Massachusetts clinic that violated state licensing and supervision regulations. Her parents alleged that the clinic’s claims were fraudulent because they implicitly (and falsely) represented that the facility was in compliance with the relevant provisions. A district court dismissed the suit, but the First Circuit reversed. In a unanimous opinion written by Justice Thomas, the Supreme Court held that where a defendant “makes specific representations about the goods or services provided, but knowingly fails to disclose . . . noncompliance with a statutory, regulatory, or contractual requirement[,] . . . liability may attach if the omission renders those representations misleading.”  But cautioning that such misrepresentations must be “material to the Government’s payment decision,” the Court reversed and remanded because the First Circuit had applied an impermissibly broad test.

Escobar was not the only federal appellate case to grapple with implied certification in recent years. In 2015, the year the First Circuit considered Escobar, no fewer than four federal appellate cases confronted the theory. Arguably the most important of these cases, at least from the standpoint of national security, was United States ex rel. Badr v. Triple Canopy, Inc., a Fourth Circuit case reversing the dismissal of a suit alleging that a military contractor had falsified marksmanship scores for Ugandan security guards hired to protect Al Asad Airbase in Iraq. Noting that the contract did not expressly condition payment on marksmanship, the district court had concluded that the claims did not contain any factually false statements. The Fourth Circuit disagreed, upholding the allegations under the theory of implied certification. Perhaps due to the tragic facts and sympathetic plaintiffs, or perhaps in recognition of the important role Medicare and Medicaid FCA cases now occupy, the Court instead chose to review Escobar rather than Triple Canopy. Nevertheless, in light of Escobar, Triple Canopy was reversed and remanded for further proceedings. On May 16, 2017, the Fourth Circuit issued its long-awaited decision on remand.

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The U.S. Drug Price Catastrophe and the Central Planner

By Aobo Dong

If you are fortunate enough to have an insurance plan with extensive coverage and low co-pays for prescription drugs, chances are you may not be overly concerned with the U.S. drug price catastrophe. For millions of Americans without such a plan, getting the much-needed prescribed medicine often involves frustrating multi-player exchanges between the pharmacy, the insurance company, and the doctor, due to complications such as drug pricing and pre-authorization.

The NYT recently launched an investigation into a simple question: “Why Are Drug Prices So High?” One surprising revelation from the study is that deep drug pricing problems may have been contributing to the ongoing opioid crisis, as insurers restrict patient access to less addictive alternatives. For instance, UnitedHealthcare stopped covering Butrans – a drug that had successfully helped Alisa Erkes to ease her excruciating abdominal pain for two years – just to lower its own expenses. Instead, Alisa’s doctor had to put her on long-acting morphine – a drug in a higher category for risk of abuse and dependence than Butrans. However, since it costs the insurance company only $29 a month, UnitedHealthcare covered it with no questions asked. Continue reading

ERISA and Graham-Cassidy: A Disaster in Waiting for Employee Health Benefits and for Dependents under 26 on their Parents’ Plans

Graham Cassidy § 105 would repeal the ACA “employer mandate”.  Although its sponsors claim that the bill will give states a great deal of flexibility, it will do nothing to help states ensure that employers provide their employees with decent health insurance; quite the reverse.  It will also give employers the freedom to ignore the popular ACA requirement that allows children up to age 26 to receive coverage through their parent’ plans, at least when their parents get health insurance from their employers.  Here’s why.

The Affordable Care Act (ACA) was designed to foster and build on health insurance plans that employers in the US provide to their employees.  With limited exceptions such as provisions about wellness plans, it left in place the Employee Retirement Income Security Act of 1974 (ERISA), the federal statute that governs benefits that employers offer their employees.  Rather than amending ERISA to place new federal requirements on employer-provided plans, ACA imposed a tax penalty (called a “shared responsibility payment”) on employers (with at least 50 full-time equivalent employees) with employees who receive tax credits for purchasing insurance through the ACA exchanges.  This is the ACA “employer mandate,” aimed to deter employers from dumping their existing health care plans.  It is the ACA provision that supported the mantra: “you’ll get to keep the insurance you have.” This mandate is imposed through a tax and otherwise leaves in place the regulatory vacuum created by ERISA.  Let me explain how.

ERISA, enacted in 1974, is the federal statute that governs employee “welfare” plans: benefits, including health benefits, that employers offer their employees.  Although ERISA imposes quite substantial requirements on pension plans, it imposes only disclosure and fiduciary responsibilities on welfare plans.  Employers must state clearly for their employees what they are given—but may also reserve the right to change plans, as long as they tell their employees that they might do this.  Employers also must manage their plans as a good fiduciary would, but this does not mean that employers must offer minimum benefits to their employees, or indeed any benefits at all. Continue reading

Block Grants: Sound Theory or Doomed to Fail?

Block grants are all the rage. Take the latest G.O.P. proposal to repeal and replace the Affordable Care Act: the Graham-Cassidy bill. It proposes to replace the current system and instead give grants to the states, essentially taking the funds the federal government now spends under the ACA for premium subsidies and Medicaid expansion and give those funds to the states as a lump sum with little regulation.

There is a complicated formula by which the bill proposes divvying up this money among the states. Many think the formula is unfair, that it benefits red states over blue states, and that it just flat isn’t enough money. These are incredibly important concerns. But let’s put them to the side for just a moment and consider the theory behind block granting. Is there any world, for instance assuming that the amount and allocation of the funding could be resolved (probably crazy talk), in which switching to block granting may actually improve upon the status quo?

Proponents of block granting health care make two main arguments. First, it will reduce costs. By block granting Medicaid and the ACA subsidies, we end the blank check open entitlement that these programs have become and give states more skin in the game. Second, these cost savings will come from empowering states to innovate. States will become more efficient, improve quality, and solve their own state-specific problems.

These arguments have an understandable appeal. But how will states really react to providing health care coverage on a budget? Continue reading

What’s Next for the ACA?: A Lecture by Larry Levitt

What’s Next for the ACA?: A Lecture by Larry Levitt
October 3, 2017 12:00 PM
Wasserstein Hall, Room 1010
Harvard Law School, 1585 Massachusetts Ave., Cambridge, MA

Join Larry Levitt for a talk about the future of the Affordable Care Act and health care in America.

Larry Levitt is Senior Vice President for Special Initiatives at the Kaiser Family Foundation and Senior Advisor to the President of the Foundation. Prior to joining the Foundation, he served as a Senior Health Policy Advisor to the White House and Department of Health and Human Services. He holds a bachelors degree in economics from the University of California at Berkeley, and a masters degree in public policy from Harvard University’s Kennedy School of Government.

This event is free and open to the public.

Sponsored by the Center for Health Law Policy and Innovation, the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, and the Harvard Health Law Society, all at Harvard Law School.

The Unsustainable High Costs of Clinical Negligence Litigation in England

By John Tingle

Presently in England clinical negligence costs are high and are set to grow even higher. The National Audit Office (NAO) has recently examined clinical negligence costs and they go into some detail on the costs of claims and make a number of important recommendations in a report. Very useful insights are given on the management of clinical negligence claims in the NHS. There is a focus on clinical negligence claims managed through the NHS Resolution’s indemnity scheme, the Clinical Negligence Scheme for Trusts (CNST). Trusts pay contributions to this scheme which is a risk pool and when a legal claim is made against them NHS Resolution takes over the claim and meets the associated costs. The NAO argue that urgent changes are needed to deal with the problem of the increasing costs of clinical negligence claims.

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TODAY, 9/11 at 5 PM: Health Law Workshop with William Sage

September 11, 2017, 5-7 PM
Hauser Hall, Room 104

Harvard Law School, 1575 Massachusetts Ave., Cambridge, MA

Download the Presentation: “Fracking Health Care: The Need to Safely De-Medicalize America and Recover Trapped Value for Its People”

William M. Sage is James R. Dougherty Chair for Faculty Excellence at the University of Texas-Austin Law School and Professor (Department of Surgery and Perioperative Care) in the Dell Medical School.

First, Do No Harm: NGOs and Corporate Donations

By Clíodhna Ní Chéileachair

Last year Médecins Sans Frontières (MSF) refused free vaccinations for pneumonia from Pfizer, who had offered the medicines as a corporate donation to the humanitarian organisation. The explanation MSF provided (available here) makes for an interesting, if uncomfortable read. Looming large is the lengthy history of negotiations between MSF with the only manufacturers of the vaccine, GlaxoSmithKline and Pfizer. MSF claim that the only sustainable solution to a disease that claims the lives of almost a million children each year is an overall reduction in the cost of the vaccine, and not one-off donations that come with restrictions on where MSF may use the medicines, and a constant power disparity between the parties, where Pfizer may release the medication on their own timeline, and revoke access as they see fit.

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New CBO Analysis: Cutting Subsidies Would Backfire on Trump

By Wendy Netter Epstein 

The cost-sharing reduction payments are an essential component of the ACA.  These payments reduce out-of-pocket costs for lower income enrollees so that individuals can actually use their insurance coverage and not be prevented from seeking care because of a high deductible or a copay they can’t afford.  President Trump has been threatening since he took office to end these payments.  And there is at least some possibility that he has the authority to do (see House v. Price).

Politically speaking, Trump’s goal in threatening to end these payments is either to hasten what he sees as the inevitable demise of Obamacare—or at least to use the threat of ending the payments to hold the feet to the fire of those who have resisted “repeal and replace.”  Either way, Democrats have widely condemned Trump’s threats and the instability they cause in the market. Continue reading

Petrie-Flom Panelists Contribute to new Guiding Framework for Designing and Implementing Serious Illness Programs

By Mark Sterling

As part of the Project on Advanced Care and Health Policy, the Petrie-Flom Center hosted two convenings on Critical Pathways to Improved Care for Serious Illness.  Through roundtable discussions and working sessions at these convenings, expert panelists reviewed innovative programs designed for the aging population with chronic illnesses, focusing on those with declining function and complex care needs.  These convenings contributed to the development of a framework to guide healthcare providers in developing and scaling programs to deliver high quality care to individuals with serious illness, which is of increased importance given the growth of this population and the development of alternative payment models.  The convenings were held in March and June, and the panelists, agendas, slide decks, and related program materials remain available on the Petrie-Flom website (Session 1 & Session 2).

C-TAC, which collaborates with Petrie-Flom on the Project on Advanced Care and Health Policy, now has published a Report, Toward a Serious Illness Program Design and Implementation Framework, to help providers develop, replicate, and scale programs across a variety of serious illness populations and settings.  The Report’s Framework provides steps to allow healthcare organizations to assess evidence-based options for each facet of care model design and implementation.  As noted in the Report, the Framework is designed to:

  • Inform serious illness program development, replication, and scaling;
  • Integrate with care model payment design;
  • Inform care model and proforma simulator development;
  • Inform other aspects of design and development such as policy, standardized measurement, and regulatory analysis.

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OK, Now What? Health Care Reform Next Steps

By Carmel Shachar

The latest push to repeal at least some aspects of the Affordable Care Act (ACA) died late into Thursday, July 27, 2017 when John McCain (R-AZ) joined Lisa Murkowski (R-AK) and Susan Collins (R-ME) to vote against a much stripped down repeal bill.  This dramatic moment has been replayed over and over again by health policy wonks and on cable TV.  However, now that we have all “watched the show” a pressing question is unavoidable: What happens next?

Next Steps for Congress

The failure to pass repeal and replace (in the form of the Better Care Reconciliation Act), complete repeal (in a variation of the Obamacare Repeal Reconciliation Act), or skinny repeal (in the form of the Health Care Freedom Act), suggests that Congress may have to resort to something previously considered unthinkable: bipartisan action.  Indeed, soon after Senate Republicans failed to pass a health care bill, Senate Democratic leader Chuck Schumer (R-NY), stated that “[o]n health care, I hope we can work together to make the system better in a bipartisan way.” Continue reading

Is There a Fourth Amendment Expectation of Privacy in Prescription Records? According to the Utah District Court, Maybe Not

It might come as a surprise to many in the United States that they may have no Fourth Amendment reasonable expectation of privacy in their physicians’ records when their physicians transfer these records to state agencies under state public health laws. Yet on July 27, the federal district court for the state of Utah said exactly this for records of controlled substance prescriptions—and perhaps for medical records more generally. (United States Department of Justice, Drug Enforcement Administration v. Utah Department of Commerce, 2017 WL 3189868 (D. Utah July 27)). Patients should know that their physicians are required by law to make reports of these prescriptions to state health departments, the court said. Because patients should know about these reports, they have no expectation of privacy in them as far as the Fourth Amendment is concerned.  And, so, warrantless searches by the Drug Enforcement Administration (DEA) are constitutionally permissible at least so far as the district of Utah is concerned.  Physicians are by law required to make many kinds of reports to state agencies: abuse, various infectious diseases, possible instances of bioterrorism, tumors, abortions, birth defects—and, in most states, controlled substance prescriptions.  The Utah court’s reasoning potentially throws into question the extent to which any of these reports may receive Fourth Amendment protection.

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Prime Health: Should Amazon Purchase a Hospital Chain?

Cross-posted from Medium.

By Nicolas Terry

The devotees of digital health and disruption recently lit up the Internet after reports that Amazon had deployed a secret health tech team codenamed 1492 (presumably a reference to healthcare visionary Columbus). The real surprise would be if Amazon did not have such a team in place. Other tech companies, Alphabet, Apple, IBM, Samsung, et al, understand that, while a latecomer to technologies, future healthcare will be data-driven and that there will be multiple opportunities to sell cloud storage, analytics services, and immodestly-priced wearables.

But, let’s pose a far more interesting question. What if Amazon decided to go beyond participating in upstart digital health with its interest in wellness, and took a swing at traditional healthcare and sickness? What, in other words, if Amazon purchased a hospital chain or network? Let’s assume that “1492” is the internal code name for Prime Health. On its face, the idea of what only a few years ago was just an online bookseller entering the healthcare field seems ridiculous. After all, healthcare is more complicated by several orders of magnitude than any other industry. Also, healthcare is particularly hard for outsiders to disrupt due to intrinsic market failures, overarching structural issues, the illiquidity of healthcare data, provider and patient heterogeneity, underperforming HIT technologies, third-party reimbursement, and so on. Saliently, healthcare is not about warehousing hard goods and distributing them with AI-based logistics. Rather, healthcare is all about bricks-and mortar facilities, services more that goods, face-to-face interactions, neighborhoods, customer needs that cannot be left to “spoil,” and a “last mile” problem that is incredibly hard to solve with technology. In other words, it’s quite like selling groceries. However, here’s the thing, Amazon recently purchased the upscale grocery chain Whole Foods for $13.4 Billion! Continue reading

Obamacare as Superstatute

By Abbe R. Gluck

I am have always been a partial skeptic about Eskridge and Ferejohn’s “superstatute” theory—their groundbreaking argument that certain statutes are special because they transform and entrench norms beyond the rights embodied in the statute itself. Some of my resistance stems from how hard it has been for scholars to identify and reach consensus on which statutes, apart from Eskridge and Ferejohn’s paradigm example of the Civil Rights Act (which beautifully fits the theory), fit the bill. (The other part of my resistance comes from dissatisfaction with the doctrinal implications of their theory.)

But since last October, Eskridge and Ferejohn have been paramount in my mind and I may need to eat some crow. It has been impossible to watch the past eight months of debate and drama over the Affordable Care Act without thinking of superstatute theory. I have nearly finished an article making that case, but given this week’s events, I could not resist putting the idea out there sooner.

The ACA seems to clearly satisfy the threshold criteria of superstatute theory. It has survived (several) election cycles, including a change in Administration. It has survived more political contestation than any statute in modern memory, including not only the 50 times Congress tried to repeal it under Obama and the four other, more serious, attempts that we just saw; but also four years’ worth of sabotage by Congress to starve to death with lack of funding. It also has survived not one, but two, high profile showdowns in the U.S. Supreme Court that had the potential to take the entire statute down (NFIB and King), and other important challenges to discrete aspects of the law (e.g., Hobby Lobby). Continue reading

It’s Time To Take Responsibility, Senators

Crossposted from the Take Care blog

By Rachel E. Sachs

Yesterday, the Senate took a key procedural vote in service of the Republicans’ never-ending quest to repeal (or at least partially repeal) the ACA. Fifty Republican senators and Vice President Mike Pence voted to proceed to debate on repeal – without knowing the final product they will vote on. As I and others have written before, this is a recipe for disaster when it comes to an area of policy as complex as health care. But I want to write here to emphasize a different aspect of the procedure: the elusive conference committee.

Specifically, a lot of the rhetoric coming from Senate Majority Leader Mitch McConnell and other top Republicans in the days before the vote went something like this: the goal is just to find something that 50 Republican Senators can agree on for now, and after that there will be a conference committee with the House of Representatives to settle on a final bill (examples hereherehere, and here). This tactic should remind health care followers of the rhetoric coming out of the House after they approved their own bill in May – at least some electorally vulnerable Representatives noted that they didn’t actually vote to pass their disastrous bill, they just voted to send it to the Senate, which would then clean it up.

There’s just one problem: the Senate doesn’t have the ability to control whether they go to a conference with the House. If the Senate successfully passes something – whether that be skinny repeal or some other mystery bill still to be determined – the House can simply pass that text into law without making changes.

Let’s go to my new favorite source, which is Riddick’s Senate Procedures, named after Senate Parliamentarian Emeritus Floyd M. Riddick. (NB: If you think I should have titled this blog post “The Chronicles of Riddick-ulous,” please drop me an email.) Riddick’s, last revised in 1992 is an encyclopedic treatise containing all Senate Procedures, and it has some thoughts about conference committees. And, because it is now 2017, there are also two terrific CRS reports from 2015 (here and here) detailing conference committee procedures.

So what do Riddick’s/the CRS reports provide for, here? In short, it’s not up to the Senate whether they go to conference with the House. It’s up to the House. The House could just pass the bill passed by the Senate, as is. Or it could agree to go to a conference with the Senate, further delaying the repeal process and requiring an additional vote in each chamber.

Don’t believe the spin from Senators who tell you that theirs is just a vote to go to conference. They don’t control that. This may be their final vote – they should act like it, and own the consequences.

This post originally appeared on the Take Care blog on July 26, 2017.