Philip K. Howard

The Case for a Cost Containment Commission

2009-11-11T17:57:22Z

The big story of the health reform debate is not what the bills provide, but what they don't provide--no liability overhaul and no serious effort at cost-containment. American healthcare may bankrupt the country unless the waste and inefficiency--an estimated 30% to 40% of total costs--is wrung out of the system. The waste is $700 billion to $1 trillion every year. There can be no greater domestic priority.

Building a coherent new framework, however, is almost impossible in our political system. Devising a new healthcare system through hundreds of separate negotiations, with 535 members of Congress each trying to do the bidding of different constituents, is like constructing a building without any ability to make sure the walls and other elements fit together.

Containing costs requires changing the rules for all participants. Underlying incentive structures conspire to drive doctors and hospitals to do what they will be reimbursed for, not what is needed. Providers spend their days in a bureaucratic maze, focused on compliance and avoiding legal risks. Patients have no incentive to be prudent in their demands on healthcare providers, or in their personal habits.

Studies indicate that the largest drivers of waste, with rough percentages each contributing to unnecessary costs, are these: fee-for-service incentives for unnecessary care (50%), the lack of consumer responsibility (40%; see here and here also), defensive medicine (20%; see here also), excess bureaucracy (20%), and fraud (10%). The numbers total more than 100% because the skewed incentives overlap--a doctor orders expensive tests because it is profitable, provides a potential defense in a lawsuit, and the patient has no financial incentive to question the decision. Fraud thrives in a dense bureaucratic thicket with no patient incentive to check the false invoice.

A Circle of Waste

Because the skewed incentives reinforce each other, no reform is likely to be effective without overhauling the entire structure. A new structure should be better for most participants, liberating providers and patients alike from suffocating bureaucracy and legal fears. But the grinding gears of political deal-making in Congress make it impossible to create a coherent new structure. Piecemeal negotiations will always fail because special interests cling to their entitlements, fearful of letting go lest they find themselves in an even worse position.

The American Medical Association, for example, recently made a pact with Democratic leadership that it would stop advocating liability reform if Congress would not reduce Medicare reimbursement rates for doctors. The AMA then contacted other physician groups, urging them to stop agitating for malpractice reform, at least for the time being.

This political deal would have the effect of maintaining wasteful habits. The AMA is correct that costs can't be contained by simply reducing reimbursement rates--that's like trying to fix an inefficient machine by giving it less fuel. But retaining the current system is also not an option--we can't afford to pay doctors for unneeded services. And trading away liability reform, as doctors know better than anyone, just guarantees wasting billions in defensive medicine.

The AMA's logic was that it was engaged in an exercise of realpolitik. Senate leadership had informed them that there were not 60 votes for liability reform--mainly due to the influence of trial lawyers. But that just further illustrates the dysfunction of special interest politics. Whom do the trial lawyers represent? Liability overhaul is supported by every legitimate constituency, including consumer and patient safety groups, as well as by an overwhelming 83% of voters, according to a recent national survey by Common Good and the Committee for Economic Development.

What usually happens in Congress is a descent to the lowest common denominator. When special interests collide, Congress maintains the status quo. That's what happened here--the AMA's political deal got voted down on the Senate floor. The process then played itself again in the House--with the doctors supporting an unaffordable deal because it maintains reimbursement levels. But that deal won't hold up in conference.

It's very hard to move, forward or backward, in a process dominated by special interest politics. The exceptions are new programs that spend money--there's not a special interest for fiscal prudence.

This political process is incapable of creating a new comprehensive structure to contain health care costs. Congress must delegate the responsibility to a group that has neither the debilitating political pressures nor the balkanization of responsibility.

The best model is probably a "base-closing commission," in which a group recommends a plan which Congress can either vote up or vote down--but not alter. In healthcare, such a "cost-containment commission" would be given the task of recommending overhauls that would address the core components of waste.

The bill proposed by the Senate Finance Committee has the germ of that idea in an independent "Medicare Commission," a body that would recommend changes in Medicare reimbursement. But its mandate is limited to details of Medicare payments, not overhauling the structure of healthcare for all participants.

The components of a comprehensive reform are not a secret. Experts have been discussing them for years, but without any authority to make the difficult balancing choices and without any mechanism to break through special interest politics. Thus, a comprehensive plan would likely involve:

New reimbursement models, with bundled payments and other ways of compensating providers based on overall effectiveness, not piecework payments;
A requirement that patients who can afford it contribute to their care, as other countries such as Switzerland do;
Models to improve reliability of justice, such as special health courts that strive for consistency in applying accepted medical standards; and
Radical simplification of health care bureaucracy, with common reimbursement forms and regulation based on goals and principles, not micromanagement.

(David Leonhardt discusses some of these components in an essay about Dr. Brent James in the Nov. 8 issue of The New York Times Magazine.)

The usual objection to special commissions is distrust--everyone fears that the deck will be stacked in favor of someone else. But the proposed independent Medicare Commission in the Senate bill provides a balanced appointment mechanism that ensures representation by experts recommended by both parties, and confirmation by the Senate.

The other objection to special commissions is that they make recommendations but nothing ever happens. Indeed, if Congress chooses to ignore the recommendations, then rising health care costs will continue to drive America towards a fiscal crisis. The pressures here work powerfully in favor of change. The one thing that we know won't work is 535 members of Congress coming up with a coherent plan. That's why America needs a special commission to do the job.

(Photo: cliff1066™/Flickr)

Avoiding Institutional Madness

2009-11-06T17:22:55Z

James Fallows has an insight on the Fort Hood shootings that I feel is wise: "The shootings never mean anything. Forty years later, what did the Charles Whitman massacre 'mean'? A decade later, do we 'know' anything about Columbine? There is chaos and evil in life. Some people go crazy."

I would add that the felt need to learn a lesson from individual madness often leads to institutionalized madness--as with the "zero tolerance" rules that sprouted up in schools after Columbine and result in suspensions of girls found with Midol, or a first grader with his Cub Scout camping utensil. Indeed, if there's a lesson from these events, it's that we need to be free to act on our judgment about people whom we think are unbalanced--a version of "if you see something, say something." Sometimes the crazy person is allowed to remain notwithstanding numerous warnings because of the sense of disempowerment wrought by the rights revolution. Seung-Hui Cho, the student who murdered 32 people at Virginia Tech in 2007, had of long history of pathological conduct. But psychologists and others who had seen the dangers didn't send warnings to the family or university officials because of his "right to privacy."

The Menu of Malpractice Reforms

2009-09-13T15:14:19Z

The President committed in his speech to Congress to promote pilot projects to solve the problem of defensive medicine. "I've talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs," he stated. "So I'm proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine."

Creating special health courts is the proposal advanced by most serious observers to eliminate the incentives for defensive medicine--including by consumer groups such as AARP, patient safety groups, medical societies such as the AMA and the American College of Obstetricians and Gynecologists, and by such thought leaders as Bill Bradley, Mark McClellan, Newt Gingrich, and David Brooks. The public also overwhelmingly supports health courts--a poll released last week shows that 67 percent of the public favored the reform initiative. Nor is the idea of special courts some radical idea--our country has scores of special courts, precisely in areas where special expertise is needed to achieve consistent and expeditious justice--bankruptcy courts, tax courts, mental health courts, drug courts, workers' compensation tribunals, Social Security tribunals, vaccine liability courts, family courts, you name it.

But special health courts are vigorously opposed by trial lawyers. "First you have a court for doctors, and then what? A court for plumbers?" said one representative. In fact, special health courts would probably be good business for trial lawyers--they could represent injured patients at a fraction the investment in expenses and time. But the fear of "setting a precedent" is leading them to support almost any proposal other than special health courts.

A range of malpractice reform proposals will probably be considered over the next few weeks, and it's probably useful to catalog them, and identify the advantages of each. All of these reforms have significant merit, but special health courts are by far the most important in reducing defensive medicine. Each of the reforms can be combined with others, and it would be preferable to combine the best features of each. Here's a summary:

Special health courts. This proposal has been developed in the last few years jointly by the Harvard School of Public Health and Common Good (an organization which I chair), with funding from the Robert Wood Johnson Foundation. A number of public forums have been held on the initiative at Brookings and other think tanks. The basic idea is to create a system that: a) aspires to consistent rulings from case to case, with written rulings on standards of care by judges advised by neutral experts; b) expedites proceedings, with most claims decided in a matter of months, encouraging early offers and settlements of meritorious claims; and c) ensures that all information is compiled and fed back into the system so that doctors and hospitals learn from their mistakes. The supporters believe that the system will compensate more patients at a dramatically lower overhead cost (in the current system, almost 60 cents on the dollar go to legal fees and administrative costs, with an average of 5 years to resolution). Most importantly, by providing a system of justice that aspires to make rulings based on accepted medical standards, special health courts should substantially eliminate the need for "defensive medicine."

Caps on damages. Over half the states have enacted "tort reform" limiting non-economic damages, generally capping "pain and suffering" at $250,000. These reforms have the effect of reducing malpractice insurance costs for doctors and hospitals, attracting medical professionals to the jurisdiction, and, some studies suggest, reducing defensive medicine somewhat. But doctors can still be liable, when they did nothing wrong, for millions of dollars of economic damages (say, a lifetime of care for a baby born with cerebral palsy), and doctors in states with tort reform still say they practice defensive medicine. It is an article of faith among liberals that caps on non-economic damages are an affront to fundamental notions of fairness (even though most states place no limit on actual compensatory damages), and President Obama has stated that he is opposed to damage caps. By way of comparison, other countries in the western world typically limit non-economic damages, but do so according to a schedule where the pain and suffering award depends on the severity of the injury.

Medical screening panels. About 20 states have a requirement that malpractice cases be submitted first to expert panels. The findings of the panel are not binding, but in certain circumstances can be used in evidence. The panels have decidedly mixed reviews. In one state, Maine, the panels have substantially improved the reliability of claims. In other states, the panels seem to add time and expense without substantial improvement of reliability or efficiency. The AMA recently released an article surveying their effectiveness.

Safe harbors for following practice guidelines. The idea here is to insulate doctors from liability if they conform to accepted guidelines. There are two significant issues here: First, there is no software program that will make that determination. The doctor is dealing with a live patient, with a complexity of characteristics. It takes someone with expertise and judgment to decide whether a doctor is complying with practice guidelines--i.e., a special court or panel with authority to make a binding decision. Second, some healthcare experts believe that this safe harbor will sometimes discourage doctors from delivering the best care. Practice guidelines are accurate most of the time, but not all of the time--sometimes it's best not to prescribe beta blockers after a heart attack. Sometimes the patient is too weak to endure the prescribed protocol. You wouldn't want a system that encourages doctors to act against their best judgment because it offers the doctor a safe harbor. Dr. Jerome Groopman recently wrote about this issue in a piece for the Wall Street Journal.

Early offer programs. This idea, originated by Professor Jeffrey O'Connell, encourages defendants to make an early offer of compensation--and encourages plaintiffs to take it because it limits attorney fees to 10 percent. Most observers like this idea as an efficient way to resolve many legitimate claims. But it does not address the problem of unreliability that is the main driver of defensive medicine.

Apology statutes. Several states have enacted laws that encourage doctors who have made mistakes to be open with patients, with the inducement that the apology cannot be used as evidence. This has the salutary effect of bringing provider and patient together when things go wrong, and of avoiding the polarization of adversarial litigation. The Sorry Works! Coalition has advocated for this proposal since 2005. It does nothing to help the doctor who is wrongly accused of making a mistake, however, which is the fear that drives defensive medicine.

The chart below--which is also available here as a Word document--evaluates the characteristics of these reforms against the goals of reform:

	Reliability / Reduce Defensive Medicine	Fair Compensation	Efficient Compensation	Improve Patient Safety	Reduce Malpractice Premiums	Physician Accountability
Special Health Courts	üüü	üüü	üü	üüü	ü	üü
Caps on Damages	ü				üüü
Medical Screening Panels	ü	üü	ü		ü
Safe Harbors	ü			ü	ü
Early Offer Programs	ü	üü	üüü		ü
Apology Statutes		ü	üü	ü
A Combination of Reforms	üüü	üüü	üüü	üüü	üüü	üü

ü = Somewhat Helpful üü = More Helpful üüü = Most Helpful

Next Steps for Malpractice Reform

2009-09-10T20:29:04Z

President Obama took an important step away from special interest politics when he committed to changing justice to solve the problem of defensive medicine in his address to Congress. "I've talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. I know that the Bush administration considered authorizing demonstration projects in individual states to test these ideas. I think it's a good idea, and I'm directing my Secretary of Health and Human Services to move forward on this initiative today."

The wires were abuzz this morning over what he really had in mind. The trial lawyers will try to limit the damage with some sort of program that doesn't limit their ability to make emotional arguments to the jury. But restoring trust in justice--the only way to eliminate defensive medicine--requires consistency and reliability. That means standards of care need to be decided as a matter of law, in written rulings that all can see, by a court that knows what it's talking about.

Because modern medicine is so complex, reliability almost certainly requires some kind of special court. This country has a long history of such courts, such as bankruptcy courts, and it's hard to imagine an area of society in greater need of special judicial expertise than health-care. That's why a broad coalition has come out for pilot projects--including AARP, the AMA, the American College of Obstetricians and Gynecologists, the Joint Commission on the Accreditation of Health-care Organizations, and many others.

That's what the American people want as well. Today, Common Good and the Committee for Economic Development released a survey that showed an astonishingly high 83 percent of voters want Congress to address reform of the medical malpractice system as part of any health-care reform plan. Moreover, even though the survey found that most Americans generally favor jury trials, for health-care disputes they overwhelmingly support special health courts--an extraordinary 67 percent support a new court system for health-care.

In a recent New York Times op-ed, Senator Bill Bradley called on Congress to make a basic trade--universal care for Democrats in exchange for reliable justice in the form of special health courts. This sensible approach now looks possible, if only congressional leadership can pry its hands loose from the spigot of trial lawyers.

Photo Credit: Wikimedia Commons

Stonewalling Legal Reform

2009-08-26T19:36:10Z

It is incredible to me that, amid public concern over the leading healthcare proposals, congressional leadership continues to stonewall any discussion of legal overhaul. They have effectively left the field open to Republicans, who now have seized the center with proposals for special health courts and other ideas that enjoy broad support from almost all healthcare constituents, including consumer groups and patient safety advocates. See here, here and here. I know the trial lawyers give Democrats a lot of money, but can this possibly be smart politics?

The only substantive retort to solving the problems of tort, at least that I've heard, is that the CBO found last year that it couldn't find consistent evidence that fixing malpractice laws would save money. there's also no hard evidence that overhauling fee-for-service reimbursement will save money either--but almost everyone associated with healthcare understands that cost-containment requires a fundamental change in the culture of health care delivery, starting with getting rid of the incentives (both positive and negative) to always do more.

Today's New York Times op-ed by Jon R. Gabel addresses the fallacy of looking for hard data with fundamental change. "The budget office has particular difficulty estimating savings when it considers more than one change at once.... [I]f both malpractice reform and comparative effectiveness studies were instituted simultaneously, they might work together to yield substantial savings."

Creating a reliable malpractice system with special health courts will not solve all the problems of healthcare, but it will solve some. Reliable law is also a necessary foundation for other changes in the culture of healthcare delivery. Persuading doctors to use email with patients not only requires a new reimbursement system (Britain now pays doctors more for using email) but also requires a system of justice that reliably supports doctors who use this imperfect but highly productive form of communication.

Congress should listen to doctors and patients. They see these problems with modern healthcare. The fact that it's hard to "score" the precise savings doesn't mean that the changes are unimportant. I recall the statement attributed to Einstein: "Not everything that is important can be measured, and not everything that can be measured is important."

(Photo: Flickr User aflcio2008)

Fixing Healthcare, Part One: An Inventory of Cost-Containment

2009-08-06T16:44:18Z

For the past few weeks, I've been talking with healthcare experts with a variety of perspectives, trying to discover coherent principles for overhauling American healthcare. This requires, in my view, testing every idea against its likely effect on the real people who provide healthcare services and on the real people who need those services. What's ultimately required is to change the culture of healthcare delivery.

Congress doesn't seem to be tethered to the realities of healthcare delivery, and its proposed bills seem to have been tossed in a storm of special interests. The refusal of the Democratic leadership to consider pilot projects for more reliable systems of justice--see my recent op-eds in the Wall Street Journal and Washington Post--is just one example of special interests trumping the needs of the common good.

It's hard to put pressure on Congress without a coherent point of view of what a new system should look like. In the first part of this post, I describe the aspects of current healthcare that drive up costs and must be addressed by a new framework. In the second part, I describe a framework for reform which would provide universal coverage with incentives to contain costs.

Part One: An Inventory of Cost-Containment

The healthcare debates have focused on ways to expand coverage--by mandates, by a public option, and by various forms of subsidy. But the underlying problem remains one of affordability, and, specifically, how to bring efficiency to a healthcare system notorious for its inefficiency.

Few concrete solutions have emerged because the healthcare industry itself is not sure what to do--its economic model is the product of the bureaucratic reimbursement and regulatory framework that drives providers towards always doing more. Moreover, the Congressional Budget Office cannot "score" most proposed solutions because it is impossible to quantify with any precision the main drivers of inefficiency--for example, the fee-for-service delivery model, or the amount of defensive medicine--or to quantify the potential savings of changing the legal and reimbursement framework.

Cost-containment can be viewed through many perspectives, which often overlap--for example, ineffective chronic care can be viewed in part as a problem of fee-for-service reimbursement. But categories of waste and inefficiency can nonetheless be identified, which any reform package should attempt to address. Here they are:

1. Chronic care. Care for chronic illness--mainly diabetes and heart disease--accounts for roughly 75 percent of all healthcare costs. About half of this is attributable to obesity, smoking, and other bad habits. There are several potential ways of cutting these costs:

--First, create incentives and other programs for healthier lifestyles. Safeway offers its employees reductions in premiums for losing weight and quitting smoking.

--Second, change the model of care delivery, from fee-for-service to a capitated "medical home" (or "accountable care organization"), in which providers are paid so much per patient per year, with incentives to push patients towards healthier lifestyles and with pay-for-performance adjustments to reward providers who succeed. There was a discussion among leading experts at NewTalk.org. Much of this work requires the work of social workers, not expensive healthcare professionals. Most experts agree on the need to shift to a medical home model; there is less agreement on how to get there.

2. End-of-life care. Nearly one-third of Medicare's yearly expenditures are on patients in the last year of their lives. There is a wide disparity in care for terminal illness, especially for the elderly. Palliative care in a home or hospice setting is often the most humane solution, but many doctors feel compelled to try to "cure" old age with dramatic and expensive interventions. Sometimes these are driven by an insistent child, sometimes by fear of lawsuits, sometimes by medical self-interest. Professor Marshall Kapp and Dr. Diane Meier review some of these problems.

The solution to inappropriate interventions at the end of life is not to put government in the position of making life and death decisions. But there must be a reliable legal framework in which doctors feel comfortable offering ethical leadership in end-of-life situations. Third Way provides an excellent summary of the situation and its solutions. Committee for Economic Development (CED) fostered a discussion on its sponsored 2007 proposal, beginning on p. 38.

3. Over-treatment. The pioneering work at Dartmouth by Dr. John Wennberg and colleagues exposed the inconvenient fact that healthcare is often driven by supply of doctors and machines, not by need for care. Costs in Florida are almost double that in Minnesota, with no better outcomes. The recent report in the New Yorker by Dr. Atul Gawande revealed that costs in McAllen, Texas are almost double that in El Paso, with no better results. The cost driver appeared to be that doctors in McAllen had become entrepreneurs, setting up their own clinics, buying expensive diagnostic equipment and then giving their patients the works--paid for by the clunky fee-for-service reimbursement schedules.

The solutions for over-treatment include:

--Change the reimbursement model for primary care and chronic care, migrating from fee-for-service to a capitation model with pay-for-performance adjustments. To avoid under-treatment, there needs to be end-of-year audits to review effectiveness. The CED report sited above provides descriptions of successful models, starting on p. 41. Making this transition is unavoidably complex. The best approach, which is embodied in various proposals but not in a simplified form, is to provide a voucher redeemable at a "health exchange," offering annual coverage at a fixed price. This has the enormous potential advantage of driving insurers and providers to a capitation-based model of delivery for the simple reason that fee-for-service providers will become uncompetitive. I discuss this in the second part of this post.

--Eliminate incentives for "defensive medicine." Fear of unreliable justice, and apprehension at the prospect of years of gut-wrenching litigation whenever there is a malpractice claim, have corroded the culture of healthcare delivery, such that many doctors seem to focus on self-protection as much as the needs of the patient. The solution is a reliable system of justice that renders consistent rulings based on standards of care, not a jury-by-jury system that encourages inconsistency and thrives on emotion. A broad coalition has come together behind the idea of special health courts, developed jointly by Common Good (which I chair) and the Harvard School of Public health, with funding by the Robert Wood Johnson Foundation.

--Some believe that patients must have more "skin in the game," with substantial co-pays for expensive diagnostic tests and optional surgery. This is part of the logic of health savings accounts. Substantial co-pays would need to be means-tested, so that those without resources would not be disadvantaged. One defect of health savings accounts is that they encourage saving the first dollar, when most experts, including Professor Tim Jost, believe there should be more spent on primary care, in order to avoid expensive care later on. A better option is to provide care for everyone on a fixed annual fee, but create a list of optional interventions that require significant co-payments by the patient or the employer--in effect, defining a baseline of care.

4. Bureaucracy and Overhead. Administrative costs have been estimated to account for about 11.5 percent for private insurers, 3.8 percent for Medicare and Medicaid, and some larger number for diversion of time by providers for reimbursement and legal compliance. (The CED report elaborates on this idea on p. 29, as does Uwe E. Reinhardt). The fee-for-service model is notoriously inefficient: reimbursement paperwork for each aspirin and syringe administered and a costly gatekeeper function for each intervention. Private health plans are criticized for adding overhead, especially compared with Medicare and public plans, but some of that difference is offset by the losses to fraud and abuse in public plans and by disease management services provided by insurers. More could be saved if insurers agreed upon common forms and protocols.

The transition from fee-for-service to capitated payments will reduce much of this overhead. Creating accountability mechanisms that rely on audits at the end of the year to evaluate the appropriateness of services already rendered, not a gatekeeper function for each and every intervention, should also reduce overhead costs. Probably the best way to enforce guidelines on "comparative effectiveness" (for example, avoiding costly and unnecessary CT scans for a headache) is through penalties and bonuses following year-end audits, not arguments over each and every medical decision. Another layer of overhead are the middlemen who broker health plans to groups and individuals, adding 2 to 6 percent in the group market, and much more for individual plans. A public exchange should eliminate the need for brokers for individual policies.

5. Barriers to Productivity. Healthcare is delivered in a legal jungle, thousands upon thousands of rules that require compliance. The body of unknowable law also contributes to a mindset of inertia. When in doubt, do it like it was done yesterday. Most doctors don't use email because it leaves a written record that might be used against you in a lawsuit, and might unintentionally violate requirements of privacy. Email communications are also not reimbursed. Innovation is not on anyone's top list of priorities, and, in any event, will usually be squelched by the risk managers, who basically have the job of saying no to anything new.

Better productivity requires incentives to innovate, which the shift from fee-for service to a capitated model with pay-for-performance incentives should provide. Better productivity also requires legal trust and legal clarity: providers must feel free to focus on better care, not self-protection or unnecessary bureaucratic compliance. Special health courts will allow providers to rely on sound medical judgment. A medical Federal Reserve can offer oversight and draw lines on what's needed. Legal uncertainty is the enemy of innovation, and of productive activity generally; I have a few suggestions to remedy the issue.

(Photo Credit: http://www.flickr.com/photos/orcoo/345583754)

Fixing Healthcare, Part Two: The Path to a New Healthcare System

2009-08-06T16:41:02Z

The goals of reform are clear: provide universal care that is affordable. So far, however, Congress has avoided any proposals that would require a major organizational shake-up--tabling Senators Wyden (D-OR) and Bennett's (R-UT) "Healthy Americans Act" ("Wyden-Bennett"), because it would eliminate employer-based healthcare as we now know it.

(Senator Wyden/http://www.flickr.com/photos/pirateyjoe/3642123174)

Conceptually, the most obvious way to achieve universal care without eliminating existing employer policies is through a voucher--plus an exchange where the voucher can be traded in. Employers would be free to top up the voucher and provide a more generous plan if they wanted to.

Most of the proposals on the table can be described as providing some sort of voucher. Massachusetts in effect gives vouchers to the needy. Wyden-Bennett also provides subsidies that can be reframed as voucher. But most of the proposals lack the clarity of a straightforward voucher framework. Vouchers provide a simple analytical framework for expanding care, for defining public assistance, and for deciding how much we want to spend. Moreover, by defining the amount of care we can afford, vouchers provide incentives for providers to improve efficiency in order to provide care within those limits, and provide a clear framework for evaluating cost and funding of universal healthcare. Vouchers do not require a "public option." Vouchers need not be universal, although some sort of offset for employer plans would be required if we want employers to maintain the incentive to provide their own plans.

A voucher system, combined with an overhaul of the regulatory and liability system, would dramatically shift the incentives towards a more effective system of healthcare delivery. Thus:

1. Transition into a voucher system. The most effective way of driving providers towards a new model of delivery is to transition all public assistance (starting with Medicaid) into the voucher program. This will put enormous pressure on insurers and providers to shift to a capitated system. Set up a federal authority to evaluate providers annually and help define baseline care. If we're going to have socialized healthcare for any significant part of the population (government already pays for half of all healthcare), there is no way to avoid government oversight. The challenge is to create authority structures that are transparent and accountable.

2. Overhaul regulatory and liability structures so that providers can focus on care, not compliance and defensive medicine. Congress should require special health courts with the goal of reliability. (Wyden-Bennett provides bonuses to states that implement liability reform.) Congress should establish a medical version of a base-closing commission to propose a rationalization of federal and state regulation, including easing antitrust restrictions so that, for example, providers can share expensive diagnostic equipment.

Insurers and providers must be required to reorganize themselves to provide care for an annual fixed fee, adjusted for performance. But they must be given the freedom to figure out how to innovate towards this end--subject always to oversight and accountability for good results. Top-down dictates can never work. A voucher system will put enormous pressure on them to become efficient. A reliable legal and regulatory system will give them room to innovate. And a new regulatory authority will make sure they provide competent care.

Healthcare reform ultimately requires a proposal that everyone understands. It's too easy now to blow smoke over any proposal. Universal care can be accomplished through vouchers. Cleaning out the legal jungle will create room for innovation and productivity. People can understand these principles for change. That gives them a chance of actually happening.

(For Part One)

Confusion at the Bench

2009-07-09T14:41:05Z

The debate gearing up around the nomination of Judge Sonia Sotomayor has little to do with her qualifications (undeniably impressive) and everything to do with a partisan referendum on the role of judges in a free society. You can practically already hear the senators' speeches, rewound from the last hearings. Conservatives will say she is "activist" and "result oriented," while liberals will praise her "empathy" and commitment to the "rights" of the downtrodden.

The tired vocabulary from the 1960s, however, is not just boring--it also reveals a profound misunderstanding about the role of judges. Both sides basically have it backwards, and have conspired unwittingly to foster a kind of legal free-for-all. Judges sit on their hands, letting litigants argue almost anything (thereby avoiding "activism") while permitting any disgruntled person to challenge decisions by people in authority (thereby showing "empathy" and honoring "individual rights").

Conservatives practically snarl when using the phrase "activist judge," thinking of judges in the heyday of the rights revolution who took it upon themselves to take over prisons and school districts. But their concern for judges acting like legislatures (a fair point) has mutated into a philosophical antipathy to judges making any value judgments. Conservative dogma, to quote Chief Justice Roberts in his confirmation hearing, is that judges are "like umpires," who don't "make" law but just "apply" law. This is a myth, of course--no animal sacrifices or burning of incense will reveal the one true legal ruling. A judge must make a value judgment. There's no other way to distinguish between, say, a valid lawsuit and one that, in a free society, ought to be dismissed.

Words matter, however, and the epithet of "activism" is now lodged in the collective judicial brain--it is hard to talk with any judge about judicial responsibility without hearing immediate protestations about how judges must avoid being "activist." But if judges don't assert values of reasonableness, then society loses the protection of the rule of law. That's what happened in modern society, with the effects all around us. Hardly any interaction in a free society is safe of legal peril--in the workplace, in the classroom, in government, on the playground. Teachers won't put an arm around a crying child. Doctors squander billions on defensive medicine. Diving boards disappear.

Liberals, on the other hand, see justice as the protection for the little guy, and look to Judge Sotomayor "to stand up for the rights" of the underprivileged. The rhetoric of rights is overpowering. Judges practically wilt at the thought of being insensitive to "individual rights."

But what about the rights of the community? Looking at every lawsuit as a matter of individual rights implies a lowest common denominator approach to justice that is the antithesis of the rule of law. Every accident, every job setback, has an injured person, for whom we can all feel empathetic. But letting the person maintain a claim creates a different set of victims (those who pay) and, more importantly, can discourage socially beneficial activities. If any swimming accident can result in a lawsuit, pretty soon lakes will close and there will be no diving boards.

Just as concerns about "activism" sprung from judicial overreaching, the liberal preoccupation with rights arose from a long history of judicial neglect. But the idea of rights then expanded to encompass what legal historian Lawrence Friedman calls "total justice"--in which courts were available to remedy almost any daily disappointment.

Pressing law onto daily choices is not freedom, however, but a form of coercion. Freedom is supposed to be an open field of human possibilities, not a legal minefield. Law supports freedom not by interceding in daily choices, but by defining the outer boundaries of legal intervention--"frontiers, not artificially drawn," quoting philosopher Isaiah Berlin, "within which men should be inviolable."

America needs a new judicial philosophy. Instead of focusing on enforcing "rights" and avoiding "activism," judges should look to the effects of lawsuits on the functioning of society, and see their job as drawing "boundaries" and achieving a "balance" between competing interests of freedom and individual grievances. Judicial rulings that keep claims and defenses reasonable should be encouraged, not avoided. To quote former Justice Benjamin Cardozo, the judge must act "as the interpreter for the community of its sense of law and order." Only by judges continually asserting reasonable community values can citizens enjoy the protection of the rule of law. As Justice Felix Frankfurter observed, "A timid judge, like a biased judge, is intrinsically a lawless judge."

There is plenty for liberals and conservatives to argue about, but first we need to restore the authority of judges to bring order to the free-for-all. What people can sue for establishes the limits of everyone else's freedom. That's why judges must be activist in taking back control of the courtroom. That's why judges must look to the effects of claims on the broader society, not just empathy to the particular claimant.

The Limits of Law: Ricci and the Elusive Quest for Workplace Fairness

2009-07-01T22:02:55Z

The Supreme Court's Ricci decision --holding that New Haven engaged in unlawful "reverse discrimination" by discarding test results for fire department promotions --exposes an unavoidable conflict at the heart of Title VII of the Civil Rights Law. It's basically impossible to encourage affirmative action (to avoid "disparate impact") without discriminating against other workers.

Ricci will probably prompt more litigation, as white males challenge perceived efforts at affirmative action. Rather than descend further into a downward spiral of accusations of discrimination and reverse discrimination, perhaps it's time for a fundamental rethinking of how to enforce anti-discrimination laws.

There's a flaw in the premise of these cases: law can't enforce fairness in daily relations. Law can guard against overt patterns of discrimination, but intervening in specific employment decisions creates a hopeless morass. There's no objective test, no proof in a court, that can sort out what's fair and what's not. The goal of the civil rights laws was to avoid racism and other forms of systematic unfairness --not to try to achieve a utopia in which every employment decision is extruded through the judicial system to prove some ultimate fairness. Fair to whom? Employment decisions always involve a winner and a loser.

The difficulty of proving fairness is evidenced by the majority and dissenting opinions in Ricci (see here).

The majority opinion (by Justice Kennedy) emphasized the fairness of a level playing field. What stuck in the craw was that New Haven officials devised the promotion test as an elaborate effort to avoid charges of discrimination, suggesting that the promotions would be based on objective merit. When the test results didn't turn out as hoped, the officials just discarded them. Heads I win, tails you lose.

The dissent (by Justice Ginsberg) emphasized the overwhelming patterns of nondiversity, reaching back generations. Justice Ginsberg questioned the whole idea of using a written test as the threshold for promotion --leadership skills are hardly revealed in test scores.

Both sides are right. Of course it's unfair to go to great efforts to design a neutral test, and then throw out the results. But Justice Ginsberg is also correct that no test can accurately evaluate intangible qualities like leadership, or the potential benefits of a minority supervisor. If New Haven officials feel a minority supervisor would be best, why aren't they free to make that decision?

Almost forgotten in the spat over fairness is the main goal of employment decisions in the first place --to do what's best for the organization. That always involves the exercise of judgment by the person with responsibility. The hard question, in a free society with a bad history of discrimination, is how to restore the freedom to use judgment without opening the door to past bad behavior.

Discrimination law has certainly come a long way since the heady days when it knocked down historic barriers of racial and gender segregation. Now almost any disgruntled employee can claim discrimination --even before Ricci, an estimated 70% of workers were in some "protected category." Federal courts are clogged with employment lawsuits--about 10% of the federal civil docket. Most are without merit, but the claimants don't have the objectivity to discern their own shortcomings, and certainly not to discern the needs of the organization or the skills of others. The overhang of possible claims has chilled open interaction in the workplace, and acts as a barrier to minority employment.

The Ricci decision now closes the circle of discrimination jurisprudence, achieving a kind of mobius strip of forbidden acts. You can't discriminate; you can't reverse discriminate, you must strive towards choices that are pure and neutral. If Aldous Huxley were here, he would require HR officials to take an extra dose of soma to achieve a state of complete indifference. You can already see the elaborate protocols set up to avoid "subjective" criteria--effectively making human judgment illegal. Courts will take out their magnifying glass to enforce a lowest common denominator approach to employment disputes, scrutinizing supervisors to make sure they can't favor anyone.

Is this really how we want courts to spend their time? Is this really how we want supervisors to make decisions? Does this enhance the workplace culture, or corrode it?

Justice Scalia in his concurring opinion suggests that there is an unavoidable conflict between the Equal Protection Clause of the Constitution (the idea of the level playing field) and Title VII's suggestion that employers can be liable for "disparate impact" (when minorities don't have the highest test scores). Professor Richard Epstein goes further and calls for repeal of Title VII altogether --pointing out the paradox that it prohibits affirmative action (see here).

I have a different proposal --pull back Title VII to its original goal. Keep the basic prohibition against intentional discrimination ("disparate treatment"), but limit the protection to groups that traditionally suffered discrimination in that workplace, and, with limited exceptions, require group-wide claims. Federal courts should not be called upon to adjudicate individual workplace disputes. That's a quagmire, hip-deep in emotion without any lifeline to dispositive facts. Ask any federal judge.

In my formulation, there would be no legal need to promote firefighters using written tests, and no prohibition on promoting minority firefighters. The statute is there not to create a happy world of fairness-for-everyone, but to avoid slipping back into the unhappy world of racial discrimination. There's a difference. The law isn't there to protect white guys. Nor is the law intended to compel affirmative action --what it prohibits is intentional discrimination. Now, there would still be pressure for employers, like the New Haven Fire Department, which have an extremely non-diverse workforce. The city might feel a little nervous about how it proves absence of discriminatory intent. That's not a bad thing, in my view. Leaning over backwards for diversity is a productive instinct. Feeling forced to make choices is not.

Pressing law down onto daily choices is a formula not for fairness, but for bitterness. What the competing opinions in Ricci demonstrate is how discrimination law has evolved into a perfect formula for simmering resentment. Why did he get the promotion and not me? It must be racism. Or...He must be playing the race card.... The only solution I can see is for law to get out of the business of trying to adjudicate fairness in individual choices, and to go back to guarding against patterns of intentional discrimination.

By the way, I don't think Ricci has anything to do with Judge Sotomayor's fitness as a nominee. As the Supreme Court's opinions make clear, the law in this area is internally contradictory. Judge Sotomayor's ruling is certainly not "activist" --the decision deferred to the choices of officials who are accountable politically. She and her fellow judges can be criticized, I suppose, for not writing an opinion explaining their decision to affirm the trial court. But what were they supposed to say? The Supreme Court has now given legal priority to the need to avoid "reverse discrimination," but that conclusion was hardly compelled by prior jurisprudence. There's a lesson to be learned from the Ricci controversy, however. Law has limits and can't meddle in daily choices without making everyone unhappy.

Spring Cleaning in Washington

2009-06-25T14:02:37Z

Just a few months ago, members of Congress took turns wagging their fingers at CEOs of the automakers for not making tough choices--not shedding "legacy costs," not making products consumers wanted, not cutting bloated bureaucracies. Detroit had become self-referential, unable to compete because it was unwilling to deal with its internal constituents.

Now Washington faces a series of domestic crises that will shape the health of our society for decades--unaffordable healthcare, balkanized financial regulation, and a mind-boggling deficit, to name three. But Washington will likely fail--indeed, may even make the problems worse--unless it deals with its own "legacy costs" and bloated bureaucracies, which currently make it impossible to achieve new focus and efficiencies.

Detroit is Google compared to Washington. Year after year, Congress makes laws but almost never repeals them. Washington is like a huge monument to legacy costs. Laws from the Depression will send tens of billions in unnecessary subsidies this year to farmers, organized labor and other groups thought to be in need--80 years ago. Bloat is also notorious--it's nearly impossible to fire anyone under civil service laws, so layers of middle management have grown exponentially. Professor Paul Light found 32 levels in some agencies (compared to 5 levels in most well-run enterprises).

All this accumulated law--about 300,000 pages of federal statutes and regulations--operates as a form of central planning. It bogs people down in bureaucracy. In healthcare, the labyrinthian requirements of Medicare, Medicaid, HIPAA, plus the equally dense, and often conflicting requirements of 50 states, plus the insurance company red tape, make it impossible for people to deliver care efficiently. Add to that bureaucratic nightmare the ever-present fear of being hauled into court whenever a sick person gets sicker, and you have a system that looks like it was designed for frustration and waste. (See here for principles needed to climb out of this rut.)

The inertial forces that make it hard to achieve change in Washington, in the best of circumstances, become a kind of invincible fortress when reinforced by thousands upon thousands of pages of binding law. Each of those provisions is zealously guarded by special interest groups, and changing any word of a statute requires the votes of 218 members of the House and (generally) 60 senators.

Faced with legions of special interests, Congress is trying to fix healthcare by piling new requirements on top of the old ones. But this won't address the underlying problems of efficiency, any more than it could in Detroit. To restore focus and efficiency, Congress must first clean out what's there--not to eliminate the goals of existing regulation but to put them in a coherent framework that real people can understand and internalize.

Dealing with the sclerosis of accumulated regulation, however, is not something our leaders have any experience with. Most of the historic legal reforms of the past century were written on a new slate. The Progressives at the turn of the 19th century imposed worker safety and food safety laws to fill the regulatory void of laissez-faire. Roosevelt's New Deal provided social safety nets where there were none, and job programs in agencies that didn't exist before. The civil rights movement led to laws against discrimination where there were none.

We don't have the luxury of a clean slate--healthcare, schools, and the financial sector are all mired in a bureaucratic jungle. Al Gore had the right idea with his Reinventing Government initiative, but he was trying to simplify what was there. The imperative now is much more radical, and urgent--to solve society-wide crises of affordability in healthcare, accountability in the financial markets, and disarray in schools.

Making sense of the current problems requires not just new laws--but a willingness to undo old laws in order to build coherent new structures. The litmus test is not whether some expert can draw a complicated chart showing how law requires this or that, but whether real people (including doctors, teachers, and financial regulators officials) feel liberated to focus on doing their jobs properly. The closest analog in history are recodifications that occur periodically--almost always releasing enormous improvements in productivity. In ancient Rome, the emperor Justinian is best known for taking "the vast mass of juristic writings which served only to obscure the law," and rewriting them into a coherent code.   Napoleon considered his "Napoleonic Code" to be his finest achievement, and the simplified set of principles that his experts created is still the legal foundation for most European countries. America's Uniform Commercial Code, developed in the 1950s and adopted by all states, brought consistency and efficiency to a tangled web of state laws that impeded free flow of commerce.

The current debate is missing its most important element of effective reform--the need to phase out many existing laws and regulations so that our leaders can build structures from the ground up that focus on human responsibility and accountability. This is what observers such as Ezekiel Emanuel have called for in healthcare (see here), and what Richard Posner seems to be suggesting for financial reform (see here). Two areas I have worked on--healthcare justice and authority of teachers--both require abandoning existing legal conventions in order to meet our public goals. To restore trust needed in healthcare interactions, patients and doctors need health courts that are reliable to sort out good care from bad care. To restore a school culture of order and respect, teachers need to be released from bureaucracy and the threat of a legal proceeding for ordinary daily disciplinary decisions.

Getting anything done in Washington is notoriously difficult, and the instinct is always to do whatever can be agreed upon in the sausage factory, and then to collapse from exhaustion. But that's not good enough this time around. We can't get there from here. The failures of our public institutions are built into the current structures and can't be fixed without rebuilding those structures.

Future historians will look on this time as one that was critical to the growth of America in this century. Meeting the challenge requires building a new foundation of law and regulation that aspires to address our current goals, not to mollify interest groups clinging to past entitlements. Like Detroit, Washington has to face up to the need to clean out its clogged bureaucracies and start anew.

Cutting Healthcare Costs: Back to Basics

2009-06-19T20:05:04Z

This was the week to state the problem. Obama told the AMA that healthcare costs are "unsustainable" and "a ticking time bomb"--on a trend to consume one in three dollars of GDP in three decades (see here). The CBO released a report saying that reforms currently on the table might raise costs, not lower them (see here). Three former majority leaders issued their own plan to pay for healthcare--higher taxes and lower reimbursements (see here). Then The New York Times weighed in with stories that Democrats may cut Medicare (see here).

It's not at all certain that any of these reforms will be enacted. The politics of fiscal pain have eluded Congress in recent decades. The opposition will include those with self-interest in the status quo as well as conservatives who fear nationalized healthcare. Perhaps the best argument Republicans have to scuttle reform is that the reforms won't do the job, since none promise to change the delivery system sufficiently to make universal care affordable.

But the new willingness to confront the flaws in the framework of healthcare delivery could lead towards what's really needed--a complete overhaul of the reimbursement, regulatory and liability structures of healthcare. These structures, like legal concrete poured over daily decisions, have neither the virtues of market discipline (there's no incentive by patients or providers to be frugal) nor the focus of central planning (the single payer countries at least understand that primary care is where first dollars should go). Add to the mix a complete and justified paranoia about lawsuits, and voila, you have the world's most inefficient health delivery--doctors doing whatever they can be reimbursed for, mindful of always protecting themselves legally, with patients demanding miracle cures after neglecting basic responsibility to take care of themselves. This is a "system" (actually more of a bureaucratic junkyard) without focus or discipline. That's the main reason it costs almost twice as much as healthcare systems in other countries that deliver better outcomes.

Some of the worst aspects of this undisciplined system were cited by President Obama in his speech to the AMA--the fee-for-service reimbursement model that tolerates unnecessary care by entrepreneurial doctors, brought to life in Atul Gawande's recent essay in The New Yorker (see here). Obama even ventured out to where few Democrats have gone before--acknowledging that "defensive medicine" could not be solved until doctors were given a system of reliable justice, that can be trusted to distinguish between good care and bad care. (A seismic shift given the Democrats long-standing deference to trial lawyers and their political money.)

But American healthcare is unlikely to become affordable by layering one or two reforms on top of the current system. The idea of holding providers accountable for their "comparative effectiveness"--i.e., not squandering money on unnecessary treatments--is an excellent component of a payment reform, but, if applied by rigid formulas, could potentially become a bureaucratic nightmare (similar to the focus on test scores in the No Child Left Behind law, which has transformed educators into idiot savants concerned about scores, not education). A "public option" or "mandates" to acquire coverage may be useful to cover the uninsured, but is unlikely to do much to wring inefficiency from the current system (except, perhaps, by introducing competition in areas where providers and insurers enjoy an effective monopoly). But the cost problem will not be solved merely by more competition (all providers and health plans are stuck in the bureaucratic Rube Goldberg machine), nor by reliance on choice in the marketplace (see Professor Tim Jost's analysis in Health Care at Risk: A Critique of the Consumer-Driven Movement (Duke U. Press, 2007)), nor by reducing payments to providers already squeezed to the point of pain. Containing costs requires a fundamental overhaul to re-align incentives towards healthy lifestyles, preventive care and effective results.

Doctors, nurses, hospital administrators...even executives who run health insurance companies, are real people. They get up in the morning, and set out to do a good job caring for people. They are in many respects the best in the world--the best trained doctors in state of the art hospitals. But all these people operate within structures that have been imposed upon them--reimbursement systems mandated by Medicare and Medicaid; the differing regulations of 50 states, with literally thousands of rules; as well as mind-numbing bureaucracy and paperwork from the health plans. Without too much overstatement, it would be fair to say that the people who deliver health care services are crushed and demoralized by accumulated bureaucracy, legal fears and cynicism.

America can't solve this looming crisis by reforming from the top. We must put ourselves in the shoes of all those dedicated, frustrated caregivers, and create conditions under which they can make the judgments needed to deliver effective care. We must harness their energy and intelligence towards our common problem, not extrude them through even more bureaucratic machinery.

What I'm proposing might be called the human approach to healthcare reform. The governing principles are these: Simplification, Accountability and Reliable Authority. Here is a sketch of how this approach might work.

1. Simplification.

--Reimbursement simplification. The fee-for-service model is hopelessly inefficient--inducing unnecessary care, with oceans of paperwork. Primary care and chronic care should be delivered on a "capitation" model (X dollars per patient annually), with end-of-year reviews to true up for unexpected developments and account for effectiveness. This reimbursement idea can work with any type of healthcare provider, private or public, healthcare system or single practitioner. Special medical events--surgery, specialists, hospital stays--require some version of fee-for-service, but need more discipline--perhaps bundled payments for a universe of patients, with true-ups at the end of the year.

--Regulatory simplification. Providers need to understand what's expected of them. That requires not deregulation but coherent regulation. Healthcare has become a legal jungle. See Professor Jost's overview of the scope of law here. There has not been any serious effort to conform principles or consolidate regulatory goals. The detail makes central planning look efficient--some states have rules regulating the place settings that nursing homes must use to serve residents (see here). The federal government needs to rationalize its own laws and rules, and, as the funder of almost half healthcare costs, has ample leverage to compel states to do so as well. We can't expect healthcare providers to focus on delivering effective care if they're focused instead on bureaucratic compliance.

--Public clinics. Public clinics, accessible to whomever walks in, are not a substitute for universal coverage, but could provide a failsafe mechanism for coverage. Many people, for whatever reason, will not effectively access any coverage system. Many people find themselves out of town and ill. The government should expand its program of public clinics to all urban areas. This should take some of the load off hospital emergency rooms. Health clinics are a service readily understandable, and for some, will end up being their form of universal coverage.

2. Accountability.

--Effectiveness accountability. Instead of bureaucracy and arguments over each and every procedure, end-of-year reviews can evaluate whether providers have delivered effective care efficiently, with incentives and disincentives for good or bad performance. There will inevitably be disagreements, which puts a premium on creating a reliable authority mechanism to hear disagreements and resolve disputes efficiently. Millions of hours will be saved when doctors don't have to get approval for each and every procedure--they will be at risk, however, for penalties for overutilization at the end of the year.

--Malpractice accountability. Doctors make mistakes, and injured patients should be compensated for their losses. The current ad hoc system is not reliable (studies show a 25% error rate (see this 2006 study from the Harvard School of Public Health)), staggeringly inefficient (an average of 5 years to settlement, with upwards of 60 cents on the malpractice dollar spent on lawyers fees and administrative costs (ibid.)), and transforms human error (we all make mistakes) into a moral ordeal. Universal distrust of this system infects every healthcare encounter with legal fear--as if doctors are constantly listening to a little lawyer on their shoulders. Defensiveness is now built into the culture of healthcare.

Restoring trust requires a system that will deliver consistent rulings based on accepted standards of practice. That's why a broad coalition of providers, patient safety experts and consumer groups has endorsed the goal of special health courts, developed by Common Good (which I Chair) and the Harvard School of Public Health. See here and here.

--Licensing accountability. Whether doctors are fit to practice is not effectively managed by the malpractice system. But state licensing boards are woefully underfunded and generally ineffective. There needs to be a new authority structure that can gather the data and peer reviews and make the important decisions on professional competence.

--Patient accountability. Patients should have a measure of responsibility for themselves. A few ideas for this include significant co-pays for elective procedures or medications (more broadly defined than now), and affirmative incentives for improved lifestyles and prudent use of specialists, such as those implemented by Safeway (see here).

3. Reliable Authority.

It is impossible to make sense of the difficult choices required in healthcare without reliable authority mechanisms. That is why health courts are needed, and why ideas such as Ezekiel Emanuel's call for a Federal Reserve-type structure (see here) are essential. Decisions about standards of care and scope of coverage are too complex to be applied mechanically, and require people with the authority to draw these lines. Creating these authority structures is also essential to reducing the crushing bureaucracy--there's no need to regulate how meals are served in a nursing home if someone is authorized to evaluate the overall effectiveness of the facility.

No one would design American healthcare the way it works today. For the same reason, it can't be fixed by layering more reforms on top of it. It needs a new structure, built with the goal of helping humans do the best they can to meet our common goals. We could even give it a human name: SARA (Simplification, Accountability and Reliable Authority).