Decidedly
Musings on decisions and factors that drive them.
House Health Bill: the Devil you say!
Mon, Nov 2 2009 12:01
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.
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.
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