Wednesday, September 9, 2009

HR 3200 from a systems design perspective (Part I)

By bfwebster

[Part II is now up.]

On the occasions where I have reviewed the actual text of major legislation, I have been struck by the parallels between legislation and software, particularly in terms of the pitfalls and issues with architecture, design, implementation, testing, and deployment. Some of the tradeoffs are even the same, such as trading off the risk of "analysis paralysis" (never moving beyond the research and analysis phase) and the risks of unintended consequences from rushing ill-formed software into production. Yet another similarity is that both software and legislation tend to leverage off of, interact with, call upon, extend, and/or replace existing software and legislation.  Finally, the more complex a given system or piece of legislation is, the less likely that it will achieve the original intent.

But there are some critical differences that make legislation design both harder and higher-risk than systems design. (More after the jump.)

Software vs. Legislation

First, software is designed for a target or reference system; you can in theory predict or constrain its behavior, and its behavior is largely repeatable.

Legislation, by contrast, is executed by humans, with wide latitude for interpretation and implementation, as well as misunderstandings, disagreements on meaning, and on-the-fly modifications.

Second, software typically has several layers of independent (non-human) syntactic, semantic, and integration checking that it of necessity goes through before deployment (though plenty of defects can and do  slip through).

Legislation, by contrast, is written in a natural (human) language, with all its gaps, faults, and ambiguities, and with nothing to force error checking in syntax, semantics, and integration; there's no way of "compiling", "linking" and doing a test run of the legislation in a limited environment before it becomes the (largely irrevocable) law of the land.

Third, because of the previous two factors, two or more software engineers can typically reach professional agreement on what a given section of source code will do; if they continue to disagree, there are standard tools and methods by which they can objectively demonstrate how the software will behave, either exactly or within general limits.

By contrast, and due to the corresponding factors with legislation, two or more people (legislators, executives, judges, and citizens) can interpret a given section of legislation quite differently, and each may well have a defensible position, due to the potentially wide latitude of and arena for interpretation.

Some Design Flaws of HR 3200

This all comes to mind as I have been reviewing HR 3200, aka the House bill on health care reform. While I am neither a legislator nor a lawyer (though I have worked closely with lawyers for a decade), I am a professional software architect/engineer, and a professional writer, who has worked in the IT field for 35 years. From that point of view, I believe HR 3200 will exhibit profound problems and unintended (or unclaimed) consequences if passed. Here are some of reasons why.

To begin with, HR 3200 suffers from all the problems listed above with legislation. It is written in English, and complex, obscure, jargon-laden English at that. Many of the sections are imprecise and/or incomplete, leaving large amounts of interpretation and implementation to unelected humans. Many of the objections to HR 3200 come from this very problem, including the concern that the ambiguity is deliberate and intended to open doors to politically unpalatable consequences.

HR 3200 is also massive and very complex — over 1000 pages in printed form, with hundreds of sections. For its sheer length alone, it is difficult to understand and interpret, but (as indicated below) there are other factors that make overall comprehension nearly impossible. It also makes after-the-fact revocation or even modification extremely difficult.

Much of HR 3200 makes piecemeal modifications to existing legislation, often with little explanation as to intent and consequences. So, for example:


(c) Treatment of Current Accreditation Applications- Section 1834(a)(20)(F) of such Act (42 U.S.C. 1395m(a)(20)(F)) is amended–

(1) in clause (i)–

(A) by striking 'clause (ii)' and inserting 'clauses (ii) and (iii)';

(B) by striking 'and' at the end;

(2) by striking the period at the end of clause (ii)(II) and by inserting '; and'; and

(3) by adding at the end the following:

'(iii) the requirement for accreditation described in clause (i) shall not apply for purposes of supplying diabetic testing supplies, canes, and crutches in the case of a pharmacy that is enrolled under section 1866(j) as a supplier of durable medical equipment, prosthetics, orthotics, and supplies.

Any supplier that has submitted an application for accreditation before August 1, 2009, shall be deemed as meeting applicable standards and accreditation requirement under this subparagraph until such time as the independent accreditation organization takes action on the supplier's application.'

This happens repeatedly throughout HR 3200; in fact, one entire portion (Division A, Title IV) is labeled "AMENDMENTS TO INTERNAL REVENUE CODE OF 1986″. This makes it difficult — beyond the ambiguities of the language itself — to determine just what is being modified and what the potential implications are.

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