In the weeds, fractured, and in legalese

Any decision, and especially one of great import, needs to be structured for clarity.  Having said that...

On October 29th the House produced a bill for health care reform. Rather than just accept the media's interpretation of it, I undertook the review of its 1,990 pages last night.  I made it to page 334. I still intend to finish, but some things are already apparent.

I wonder how many reporters have, and more importantly, how many Representatives will fully read and fully understand it in its present structure.  How can one?

Six aspects of the structure cause concern:

1. Not every Representative in the House is a lawyer, yet the language could not be more "legalese" or more tangled in its convolutions.

Example:

"In any case in which agreement with respect to the provisions required under subparagraph (B) for any fiscal year has not been reached as of the first day of such fiscal year, the latest agreement with respect to such provisions shall be deemed in effect on an interim basis for such fiscal year until such time as an agreement relating to such provisions is subsequently reached."

We should demand that Representatives, as authors of bills, "take a page" from this Bill itself (page 121 to be exact) in which they admonish others to use "plain language:"

"The term ‘‘plain language’’ means language that the intended audience, including individuals with limited English proficiency, can readily understand and use because that language is concise, well-organized, and follows other best practices of plain language writing."

2. Instead of defining terms in the designated area called "Definitions," the Bill makes reference to definitions buried across the 1,990 pages of the document, as well as definitions found in other documents.

Example:

"GENERAL DEFINITIONS.—Except as otherwise provided, in this division: 
(1) ACCEPTABLE COVERAGE.—The term ‘‘acceptable coverage’’ has the meaning given such term in section 302(d)(2). 
(2) BASIC PLAN.—The term ‘‘basic plan’’ has the meaning given such term in section 303(c). 
(6) EMPLOYMENT-BASED HEALTH PLAN.—The term ‘‘employment-based health plan’’ (A) means a group health plan (as defined in section 733(a)(1) of the Employee Retirement Income Security Act of 1974); "

NOTE: Since the Table of Contents does not include page numbers, nor do the footers indicate location, quickly locating "section 302(d)(2)," or section "303(c)" or others (in other Acts) to learn the definition of terms is pretty much impossible.  The reader is likely to read for some time, without knowledge of terms' meaning, before learning actual meaning. This invites misunderstanding.  It begs the question, "Is this misleading structure intentional?"

3. Not constructed in terms of constituencies, the Bill obscures the full picture being painted for each, i.e., for user/patient, provider (doctor/hospital, etc.), insurance provider, small business, large business, government (administration and oversight), government (tax: implications, administration, penalties).  As it now stands, each constituency's roles and responsibilities are fractured and spread throughout 1,990 pages. 

4. This Bill is neither a stand-alone read, nor action.  In it are Amendments to other legislation: e.g., to the Social Security Act, and the IRS tax code.  These Amendments are literally sprinkled throughout the document.  More importantly, they are made purely by reference to excerpted portions of phrases.  Full context is obscured, as in the example below:

Example:

"PAYROLL TAXES.— 
(A) Section 3121(a)(2) of such Code is amended (i) by striking 'or any of his dependents' in the matter preceding subparagraph (A) and inserting ', any of his dependents, or any eligible beneficiary (within the meaning of section 106(g)) with respect to the employee',"

5. Always a dangerous thing to do, there are numerous sections that appear to repeat themselves. In some (but not all) cases, there are slight alterations. For clarity, an element should appear once and in one location, and should include any variations (revealing their relevancy and rationale).  As the Bill currently is written, without being able to ascertain quickly a context for each current repetition (caused by lack of footers indicating location/context), further confusion is invited.  For a bill that includes proposed use of technology as a solution, it amazes one that the simple management of footers, so basic to all word processing, has been overlooked.  Again, it begs the question, "Is this obfuscation intentional?"

6. The Congress is so "into the weeds" that this Bill pre-empts the work that is the purview of an administrative body. One wonders what the Department of Health, Education and Welfare's (HEW) job is.

An example of "the weeds:"

"WHERE SERVICE IS FURNISHED
For purposes of paying the additional amount specified in paragraph (1), if the Secretary uses the 5-digit postal ZIP Code where the service is furnished, the dominant county of the postal ZIP Code (as determined by the United States Postal Service, or otherwise) shall be used to determine whether the postal ZIP Code is in a county described in subparagraph (A). "

In summary...

When did Congress drift from the role model of the Founding Fathers when it came to succinct frameworks of clarity?  The entire Bill of Rights is on one page. Consider that document's Eighth Amendment in its entirety: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Period.  Paragraph.  End of entire Amendment.

Our clients know that a directorial body's responsibility is to provide a framework for management and staff to refine subsequently into an implementation plan.  That is the "direction" and the scope expected from such a body.  A "Zip Code level" of detail is far beyond being a framework.

The U.S. public have been advised that the "devil is in the details."  However, the devil in this case appears to be the modern day Congress' assumption that they must be in charge of the details, and that approval of a framework for further work is impossible without their dotting all i's and crossing all t's.

It is impressive to see the financially pinched world of non-profits offering the commercial sector some valuable, spot-on thinking expertise, as found in a commentary on how the arts are surviving this current economic crisis. I particularly resonated with the description of "crisis thinking" leading to organizations becoming "even sicker."

An economist acquaintance of mine from Europe used to remind me that economic recessions were a time of cleaning house, making things leaner and better. A time of innovation. Of finding new and better ways to survive, in the long-term.

During tough economic times, the first things to be cut in many large businesses are personnel, training and travel. Also, though not often revealed, is the fact that activities related to long-term planning, are typically postponed or dispensed with entirely. The rationalization has been that these activities are "expendable" at a time when there is "serious fire-fighting" underway "just to survive." Contrary to the sage advice I was given, this "crisis thinking" does not bode well for innovation, or becoming leaner or better. What truly are the chances for survival following multiple cycle swings if this type of thinking dominates?

Economic cycles are reality. Tough times will continue to occur. Long-term planning, if done correctly, accounts for survival during present and future tough times. Tactics pursued for immediate survival, however, don't necessarily position for the long term.

Short-term thinking, because it is a problem-solving mindset, is typically reactive. Long-term thinking incorporates both reactions and proactive actions. It can be about survival, but it is also about positioning. If one's competition maintains this long-term view, it is the competition that will be ahead at the end of each downturn, when one is only regrouping and starting to "plan again."

Therefore, critical to the decisions one makes is a perspective in terms of time. Is one judging one's options in the context of the short-term or the long-term? The simple act of framing a decision in terms of time, would elevate the quality of judgments being made. Finding solutions that satisfy the short-term as well as benefitting the long-term position are better than those serving only immediate survival. And a separate exercise to think in this manner is not required.

A few months ago, the internet carried quite a few angry reactions to Comcast's ongoing program of "enhancement" to their delivery of cable television services, one that requires yet more equipment. Some, while spot on, were also entertaining, such as Runner Girl Knits' blog. She wrote:

"I also don't believe that your company [Comcast] has seen any televisions lately. Calling this huge piece of equipment a 'set-top box' is ridiculous. The top of my television is about 3" deep. Trying to balance a 'set-top box' might be good for an initial giggle, but impossible to do."

On the other hand, TV news coverage, expectedly, decided to frame the issue as one in which "seniors" just don't understand the ins and outs of high tech, the "digital revolution" or how to put together assorted pieces of electronic equipment. But, this is not about high tech. Nor about confused seniors. It's about a business decision to make more money. And it's about a clearly successful marketing campaign. The Federally-mandated transition to all-digital broadcasting was merely a convenient and timely catalyst for change. It has nothing to do with this "enhancement." Nor this "enhancement" with it.

From all the articles and brochures I've now read, it appears that Comcast's "enhancement" strategy starts with the removal of access to cable channels currently available. Comcast offers a "free" box so that one can then receive these now-scrambled channels. While unscrambling, the box degrades signals from all channels, including those broadcasting in high definition (HD), to standard definition. If one wants to see what is being broadcast in HD (currently possible without the box if one has an HD TV), one now must acquire, for a fee, a different signal converter box. Additionally, one must subscribe to the more expensive "upgrade" to Comcast's "high definition" offering. Additional costs will also be incurred as one tries to overcome the introduced inability to record shows without first getting other new equipment.

I confess I've always felt a little captive in having to accept the incremental increases to my cable bill over the years. I once looked into satellite TV, but discovered I am "treed out." So, I must thank Comcast for creating a significant enough disruption [something all robust strategies must consider] to cause me to pause and think about what is important to me. I decided to examine my options. I thought, at first, in terms of which television package would be best for me. In all our decision work with our clients, the better starting point is to state the context, the purpose for doing something. One has to get beyond statements about the activity itself, such as "selecting a great TV service," to thinking about what selecting a great TV service would do for one. If I had the best TV service in the world, what would be different about my life? OK. It was a bit of a struggle. What was the reason I even had a TV? So my purpose, after a good deal of thought, was "to enhance the quality of my life." (For those of you who are also exhausted by reality TV, please don't laugh just yet.)

I then wrote down statements of qualities that enhance life for me. Broad brush stroke statements. What were the characteristics of things that have made my life richer, more meaningful? I went on to determine their relative importance to me.

After that, I put down all sorts of options that I was considering, expanding the list to include more than just TV service packages. I ranked all these options in terms of how much they satisfied each of the things in life that enhance its quality for me.

In the end, TV service, no matter which type, fell far short of the other options I had put down. (Of course, each person doing this exercise, would have their own qualities, and their own ranking.)

In looking at my results, I wondered how much Comcast has examined the role of the Internet as a threat to their own video offering. And would Comcast care that adopting a stray pussycat would be better in my life than any of their TV service offerings? Probably not. Maybe they would care if a substantial number of people also cancelled the video portion of their cable service, keeping only the Internet. In that case, what are the chances we'll see some sort of "enhancement" to that offering?

The old fortune-telling "8-balls" invented in 1946 and widely popular during the 1950s have come back to mind. These toys, when rotated, would display random and often vague answers to posed questions, answers such as "Reply hazy. Ask again." How appropriate they seem today.

The US budget deficit made headlines by hitting $1 trillion on Monday. A number that is nearly incomprehensible. One wonders how long it will be before such a figure will become commonplace. Have we just seen the economic equivalent of the Roger Bannister 4-minute mile?

In response to this news the NYSE was up 185.16 points and the S&P up 21.92. This could, of course, swing wildly in the other direction tomorrow. "Outlook good."

The unpredictability of leading economic indicators, as well as their general disconnect with more tangible daily realities, increases one's reluctance to make investments with any remains of decimated funds. With futures fraught with uncertainty, options that once seemed wise or safe remain dismal. Interest rates certainly don't inspire one to put one's savings in a bank. For many baby-boomers key financial decisions must be made soon. They do not have the luxury of time to heal their economic wounds. Yet, no entity or person seems trustworthy or reliable enough to consign with one's future. How can one trust in what one does not find sane or at least moderately predictable?

Larger economic recovery solutions must address the varying needs and anxieties of multiple constituencies so that all can survive (if not thrive). Viewpoints differ, depending on one's age, education, personal comfort and economic position. If one is younger than 50, if one has training in economics, if one has a stable and sufficiently generous salary, then the volatile market and the burgeoning deficit might not seem quite as despairing as they are to persons well beyond fifty, facing retirement, confronted with little chance of recovering nest eggs built over decades, compounded by the potential loss of the so-called safety net of social security.

It is not that one view is right and one is wrong. Solutions just are, and always will be, assessed from different angles. Each perspective has its own reality. More robust solutions will account for this fact. Finding common ground is essential to selecting solutions affecting a broad range of constituents. Understanding and honoring the differing values of each constituency is critical. "Yes."