Why Biden’s Executive Order on Customer Experience Could Be a Game-Changer
Unlike prior initiatives to simply digitize the bureaucracy, this one could actually improve access to government services
I hang out in a little corner of the Internet where people obsess about things like administrative burden and government program rule reconciliation. People here love to point out the myriad of ways in which what looks like bad technology design in government is more meaningfully attributed to the mind-boggling complexity of policy. Last week’s excitement was about my former colleague Dave Guarino’s tweet about screeners for benefit programs.
In case you can’t (or have no desire to) read this chart (the work of the amazing NYC Opportunity team who run ACCESS NYC), it’s a list of benefit programs down the left, basic age eligibility for each, and then the factors that are considered when screening applicants for likely eligibility along the top. What you’re supposed to take away from this: 1 — there are a lot of benefit programs, 2 — there are a lot of things that programs take into account to decide if you’re going to get the benefit (eligibility requirements), and 3 — trying to talk about all these benefits programs in any way to any stakeholder quickly becomes impossible, because they are each administered so differently.
The message is in fact undersold; if you were talking about actual applications for these programs, not just screening to see if someone should bother applying, each of those columns is often defined differently program by program. Is your income your net pay last pay period? Or is it what’s on your previous year’s income taxes? A weekly average over the past quarter? Depends on what benefit you’re applying for. So that’s another entire dimension to each column in the spreadsheet. You might leave a screener understanding that you’re likely eligible for multiple benefits based on your income, but when you go to actually apply for these benefits you may need to provide numbers to different programs, and possibly different supporting documentation, just on income alone.
Dave’s tweet is helpful context for the next thing to get some attention on Administrative Burden Twitter: this morning’s news that the President released an Executive Order titled Putting the Public First: Improving Customer Experience and Service Delivery for the American People. This Executive Order (EO) calls out 36 customer experiences (CX) that the administration feels need improvement, many of them involving more than one federal agency and some of them involving more than one level of government, and designates a process by which agencies must work to make these experiences less burdensome for regular people. These experiences are aligned to “moments that matter most in people’s lives — like turning 65, having a child, or applying for a small business loan.” In issuing this order, President Biden joins a long line of elected leaders trying to convince, cajole, and order a massive bureaucracy known for alienating the people who must interact with it to get with it and treat people with respect. The question is: will it work?
An EO is one of the many mechanisms our government has at its disposal for what I like to call “magic words.” There are a wide range of ways that various people can put words on a page that compel other people to do something. The best known is lawmaking, whether by a Congressional body or through a voter-led process like a proposition. This topic of CX or it’s tech-speak sister, UX (user experience, really the same thing, just people don’t like the word user), has been the subject of legislation in the past. Most recently at the federal level, we had the 21st Century IDEA Act from 2018, but see also relevant laws like the Plain Writing Act of 2010, the Government Performance and Results Act of 1993 and its follow-on, the GPRA Modernization Act of 2010, and the Clinger-Cohen Act of 1996. It’s notable in ways we’ll discuss in a moment that these previous efforts did not really adopt the framework of customer experience as their measures of success, but each was getting at largely the same problem: a public hugely frustrated by interacting with government.
How much more magic do you get than signing these “words on a page” into the law of the land? Surely laws like 21st Century IDEA Act, passed by Congress, which required agencies to, among other things, “eliminate or consolidate websites or web pages that are duplicative or overlapping, ensure that each public-facing website and digital service has a consistent appearance, and ensure that each website or digital service is designed around user needs,” made life easier for the customers of those agencies? What’s that you say? You’re not sure you’ve noticed that? Turns out you’re not alone. Congress hasn’t either. In May of this year, almost three years after the passage of the law, Democratic members of the House Oversight Subcommittee on Government Operations sent a letter to OMB asking what was up. According to FedScoop, “All of the law’s deadlines passed without full agency compliance.”
Agencies, to be fair, have a pretty good excuse here, and it rhymes with Frump. There has been a lot else going on since 2018 and streamlining websites was not the top priority of the previous administration, though it’s fair to say that hasn’t been a top priority of any administration, which is part of why Biden’s personal imprint on this is exciting. But there’s a long history of whatever the skills and capacity equivalent of an unfunded mandate is. The Plain Writing Act of 2010 has had plenty of time for implementation, but I still can’t figure out what kind of covid test I need in order to get back into the country, and try figuring out whether you qualify for unemployment insurance benefits by reading a government website (which is largely a state issue, and gets to another important point we’ll cover shortly.) These magic words of law are often much less magic than we imagine.
An EO is a different flavor of magic words. Congress doesn’t have to approve an EO; it leverages executive power, not legislative. EOs, too, have varied compliance histories. Obama famously issued an EO on transparency, participation, and collaboration on his second day in office. Many of the provisions that derived from that order, particularly the requirement to open agency data sets to the public, remain conveniently ignored by some agencies today. That is not to say the order didn’t have a significant effect. It did — there are potentially thousands (? my opengov colleagues please correct me here) more data sets available to the public today than before Obama’s EO and the hard work so many public servants put into its follow up. But again, the words we think of as magic often need a lot of help to work their magic. Sometimes the spell just doesn’t work, and nothing really happens. But when it does work, it’s rarely because of the words themselves.
I am writing a book about the gap between magic words and the changes they are supposed to compel. (Aside: Please promise you’ll buy the book when it comes out next year. Thank you.) In the book, I talk about the way people (the public) tend to experience the gap, which often boils down to something far from the rarefied world of magic words: an update to a database. The magic words say that the marijuana conviction on your criminal record is no longer considered a crime, but the database (actually many) still says you’re a former felon, still subject to all the burdensome restrictions of a felony. The magic words say that you’re supposed to get unemployment insurance, but the database (again, actually many) isn’t cutting you a check. The magic words say Medicaid will cover the birth of your child, but the database (yes, again, actually many) is sending you a very large bill. It is because of these experiences, which happen at such a staggering scale they have become entirely expected, that we tend to assign the blame for this gap to government technology.
Which is where Dave’s tweet comes in. Everyone understandably wants to believe, based on their lived experience of completing complex transactions with greater and greater ease and simplicity (like it’s so much easier to refinance a mortgage today than it used to be), that complex government program rules are exactly the kind of problem that can be made easier to navigate through technology. And they’re not entirely wrong. Much can be done (and is, frequently, by great people, many of them the denizens of Administrative Burden Twitter) to intentionally design interfaces to government programs that shelter users (customers) from complexity. But you can only hide so much. At some point, you can only improve the customer experience by addressing that complexity itself.
It helps to understand how programs get so complex in the first place. In the book, I tell the story of one team working with the Centers for Medicare and Medicaid services on a program to implement a new law designed to pay Medicare doctors more for better quality care. The program has a bunch of new rules that are being worked out, somewhat defined in legislation but open to the interpretation of the regulators at CMS, and these new rules will determine which doctors and medical systems will be eligible for which payment structures, how their performance will be evaluated, and ultimately how and how much they’ll be paid under the new program. The whole thing is mind-bogglingly complex, and the tech team’s user research is surfacing how confused and frustrated the medical community already is, and how frightened they are of the burden these new regulations will impose even before they are published. The tech team’s challenge is to create an interface to this complexity that doctors understand, and hopefully that they think is fair. Doctors are so worried about what’s coming their way that they are threatening to stop seeing Medicare patients if this program baffles them even more.
As one of the team struggles to write plain language copy for the website, she discovers that the various draft regs under development by various policy teams at CMS each define the same concept differently. The concept is simple: the program allows doctors to file as part of a group. In fact, most doctors practice as part of some sort of group, anything from a small group practice to a large healthcare system, with many options in between. There are lots of places where the policy dictates that if you’re a group, you can do this or you can do that. But each of those places defines what it meant to be a group slightly differently. If you’re writing for doctors who are supposed to use the program, there is no simple, clear, and accurate way to tell them what a group actually is.
As it turns out, doctors have lots of options for how they set up their medical practices and there’s a whole industry of consultants that help doctors optimize this set up for tax advantages. These options have implications for how Medicare needed to treat doctors, so there was a legitimate basis for this diversity of definitions. But that diversity was just one factor among many that was going to take an already complex set of rules and multiply that complexity exponentially. Perhaps a very careful engineer could conceivably code a rules engine that defined a group nine different ways depending on the part of the policy that was being implemented — code is good at handling that kind of complexity — but that code would be fragile, hard to understand, and hard to test. Moreover, it wouldn’t solve the problem that the team couldn’t explain these rules on a website without pages and pages of legalese. The point of this law was to improve the quality of care. Doctors already on the verge of revolt would reach for their pitchforks if CMS tried to implement the program that way. Driving doctors out of Medicare would degrade the quality of care, not improve it.
The story has a pretty good ending. There was a lot of nuance, a lot of details, a lot of legitimate reasons why there had to be multiple definitions. But the team persisted, elevating the issue to CMS leadership, and eventually they got down to two definitions of a group that could encompass the previous nine. The tech team knew that if they could get to one, it would make for a much clearer and more manageable program for everyone involved, but many others at CMS and their contractors were already operating far outside their comfort zones in getting to two. In their minds, simplicity came at the expense of technically accurate, and technically accurate was the measure of their value. Two was as far as they could go.
This is a pattern that plays out over and over again in implementation. As much as we like to believe that administrative burden is some sort of conspiracy intentionally designed to deny people needed services (which, to be fair, it sometimes really is), most of the Kafka-esque nightmares people get stuck in happen because each service sees only the burden they impose, and not the total of the burden the customer experiences. Well, that, and the fractal nature of bureaucracy — it’s not just that each agency sees only its burden, but that each department, service, function, team, sub-team, (and sometimes each lawyer) sees only theirs. If they do perchance glimpse how all these burdens are starting to add up, they have no incentive to reduce just their own — it’s kind of an arms race. This same team at CMS saw this a dozen times. For instance, each policy subteam, of which there were many across the agency, was aware of the number of decisions they were asking doctors to make in their part of the process. But until the tech team got everyone together and journeymapped the full experience, none of them realized just how quickly these decisions added up. Together, the burden the program would impose on doctors was enormous, but each team felt that in order to do the job they’d been assigned well, they absolutely had to ask all these questions. Everyone fought for the goals they’d signed up for. Without intervention, no one fought for the user.
Most of the Kafka-esque nightmares people get stuck in happen because each service sees only the burden they impose, and not the total of the burden the customer experiences.
This example, though perhaps unusually complex because of the domain, involves mostly just one agency. Most of the customer experiences the President’s new EO targets span multiple agencies. So take the dynamics we saw across policy teams and subteams within CMS, and now try to get everyone on the same page about the customer experience across multiple agencies. Let’s say that one of the ways that a team has identified to improve the customer experience is that information a user provides to one agency (for example, informing the Social Security Administration of the death of a loved one) should be able to be used by other agencies (in order to avoid the replication of burden on the surviving family member.) But the law about data sharing across agencies is complex and nuanced. It’s easy for leadership to say that the data can be legally and safely shared, but the interpretation of those laws that’s safest for the agency is the opposite. The agency lawyers are largely incented to block data sharing, since improved customer experience is not what they are typically measured on or charged with. Many a project has died a long slow death as lawyers debated whether data could be shared.
One reason I’m hopeful about this EO is its framing. Yes, it talks abstractly about “customer experience,” in ways that remind me a bit of how the 21st Century IDEA Act spoke of user needs, but it avoids the trap of focusing on digitization. (IDEA mandated that all forms be available online within two years, which would have probably resulted in a bunch of really awful digital experiences had anyone complied with it.) Instead it calls out specific and concrete outcomes we want to see for real people. Specific agencies are charged with collaborating in the service of improving specific experiences for people, including, to the delight, I hope, of Administrative Burden Twitter, people surviving a disaster or experiencing poverty. These are times when both levels of government and silos within each level create the kind of three- four- and five-dimensionally expanding complexity that the chart in Dave’s tweet hints at. By starting with a particular life circumstance, and working backwards from what an individual might have to go through to navigate multiple agencies, services, and levels of government in that moment, the EO is saying that federal government must finally take responsibility for seeing the whole enchilada — all those accumulated burdens. “But I did my part” will not suffice in this framing.
I am a natural skeptic of magic words. When I worked in the White House, I was not a policy person. Despite working in the Office of Science and Technology Policy, my mission there was to build a capability (what became USDS), and I was terrified when people sought my views on policy, because most of what I had seen of policy efforts were their often tragic unintended consequences. The words on a page most associated with my work there were the CIO Playbook, which is nowhere near policy. It’s more like a gentle suggestion that one might consider certain practices when building digital services for the American people. If those 13 “plays” did any good, it was only through the same mechanism that USDS does any good: through people. Some people in various parts of government used the CIO playbook to strengthen their resolve to work in user-centered ways because the Federal CIO had said these were good ways to work, and the people who came to work at USDS brought those practices to life in ways that convinced others to adopt them. These were not new rules, with consequences for not following them. They were just an expression of ways people could — and should — work. The power in the work had little to do with the not-so-magic words on a page, but the people who showed up to get stuff done. The authors of the EO recognize the need for this capacity. They’re putting together teams with the policy and delivery skills to actually work on this, instead of just hoping the agencies can figure it out and threatening consequences if (when) they don’t.
And if I read this EO accurately, they’re ultimately charging OMB with the kind of air cover you’d need to, say, get down to one definition of a group. The EO calls out the Director of OMB to “work with the head of each relevant agency to help resolve issues related to overlapping responsibilities among agencies, work to address barriers to serving customers across multiple agencies, and coordinate activities to improve customer experience or service delivery when primary responsibility among multiple agencies is unclear.” (Section 5(d)). Let’s hope that extends beyond just clarifying which agency has responsibility to make the decision. OMB will need to make decisions on things like the legality of data sharing in order to get over the “no-ocracy” that keeps the efforts in legal limbo for years until the people working on them give up and move on. The authors of the EO seem to have the battle scars of implementation, and that could well pay off.
For the director to succeed in this endeavor, she will have to sometimes take the side of neither agency, but instead champion the needs of the customer over both. OMB has to be where the buck stops, for the most basic reason that tradeoffs between will have to be made. Someone will need to be there, day in and day out, to insist that the customer experience matters more than every legal or procedural edge case. That will tax not only the OMB Director and the agency heads, but the attention of many senior staff beneath them. The task will always be at risk of being subsumed by higher priorities.
I will probably always believe in the power of people actually delivering over new rules or policies — the magic words of a law or EO — but what I see in this EO is that it is grounded in thinking that is much more mature than when I worked in the White House. The framing of the problem, the focus on implementation and the likely roadblocks, the teams dedicated to follow up — all of these tell me that the people who wrote this EO understand the limits of their order, and aren’t counting on pure magic. Time will tell if the Biden administration can do the work that’s still needed to see the magic happen, but the work that’s already evident in this EO bodes well.
I am eager to see how Administrative Burden Twitter reacts to this news, and I know there will be skepticism. Those who work on improving government services in incremental ways over time have seen their fair share of well-meaning but ineffective directives from the top. And they know that what sounds pretty simple in an EO is shockingly hard for reasons that can be hard to explain. But there will also be excitement, and there should be. The President’s championing of this topic, long considered beneath the role, is groundbreaking. And there is meat on the bones of this EO. It’s not the solution, only the opportunity for progress. Especially those who are fighting day to day for progress should appreciate that.
As I say in my book (out next year in case you forgot!), “elites understand policy. The rest of us understand delivery. Delivery is how the intent of the policy gets done.” Perhaps the crisis of delivery that covid brought on has finally brought this topic to the agenda of the highest office in the US, but perhaps it’s also appropriate that Scranton Joe, the regular guy on the Amtrak, is the first President to take on administrative burden in this way. Obama did too, of course, championing the USDS and 18F, and even Trump weighed in his own chaotic way (mostly by railing against regulation), but there is something very Biden-y about the way this EO grounds the agenda in real life experiences most of us can relate to.
I’m encouraged by the ways the authors of the EO have thought about framing, about capacity for implementation, and about the need for higher and higher level officials to get their hands dirty in these sticky decisions, but in the end, the implementation of the EO will hinge on staying true to that Scranton Joe spirit. The words of an EO aren’t magic, despite being issued by arguably the most powerful government official in the world. But seeing government through the eyes of the people who need it, if practiced, consistently, over a long period of time, might be.
