The (Still Yet) Unfulfilled Promise of Automated Government Decision-Making

In Technological Due Process, 85 Wash. U. L. Rev. 1249 (2008), I explored the promise and perils of the increasing automation of administrative decision-making.  The automated administrative state took root after the convergence of a number of trends — the budget shortfalls of the 1990s, the falling costs and increased performance of information systems, and the emergence of the Internet.  Government officials saw computerized automation as an efficient way to reduce operating costs: Automated systems meant less paperwork and fewer staff.  Today, all states now automate a significant portion of the administration of their public benefit programs.  More than fifty federal agencies execute policy with data-matching and data-mining programs.  As a result, agencies increasingly use information systems to make decisions about important individual rights.

Technological Due Process identified three central problems with administrative automated systems.  First, when programmers translate policy into code, they inevitably distort it, thus embedding incorrect policy into systems.  Second, data matching programs misidentify individuals because they use crude algorithms that cannot distinguish between similar names.  Last, automated systems often have problems providing notice to individuals, often because they lack audit trails that capture why government agencies take particular action.

Colorado’s automated public benefits system, known as CBMS, served as an important case study for my work.  Responses to open-sunshine requests revealed that from September 2004 to April 2007, programmers embedded over 900 incorrect rules regarding Medicaid, food stamps, and other public benefits into CBMS.  As a result, CBMS terminated Medicaid benefits of patients with breast cancer based on income and asset limits unauthorized by federal or state law.  It denied food stamps to individuals with prior drug convictions in violation of Colorado law.  And it demanded that eligibility workers ask applicants if they were “beggars,” even though neither federal law nor state law required an answer to that question for the provision of public benefits.  Moreover, because CBMS lacked audit trails, individuals often received wholly deficient notice when the system cut or terminated their benefits.  At times, individuals received no notice.

The past four years has seen little progress.  Although state officials in 2009 thought that entering into a $48.6 million, four-year contract with Deloitte Consulting would help fix these problems, matters have arguably gotten worse.  CBMS, for instance, has delayed processing applications for benefits in 70% of cases (in violation of federal law).  It continues to terminate individuals’ public benefits without notice.  (One case led to the death of a nine-year old boy after a pharmacy would not fill his asthma prescription despite proof that his family qualified for Medicaid help).  Business school professor Don McCubbrey, who I interviewed for Tech Due Process, recently explained to the Denver Post that the recent failures cannot be due to the thousands of new Medicaid and other benefit applications from the recession.  In his view, a “system that large should be able to scale.”  According to Ed Kahn of the Colorado Center on Law and Policy, the system hasn’t just failed to fulfill its federal and state requirements but has “regressed.” Notice, too, continues to be a problem, undermining individuals’ ability to complain, let alone have a meaningful hearing in the face of termination.

The hallmarks of CBMS administration are incompetence and, seemingly, interest group capture.  As the Denver Post reports, it is not clear whether private contractors employed by the state face any contract sanctions as a result of the ongoing performance problems.  Ed Kahn explains that “neither the old contract with EDS nor the new one with Deloitte allow for sanctions.”  Although the state’s Office of Information Technology insisted that there are performance measures in the contract with Deloitte, Colorado has not tried to assess any penalties on Deloitte.  This week, I will be talking about these sorts of problems at Berkeley Law’s Technology and Regulation symposium (spearheaded by Professor Kenneth Bamberger and Professor Deidre Mulligan, who bring a wealth of scholarship and insight to the issue).  Hopefully, I can learn about other more effective uses of technology in government administration.

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1 Response

  1. Frank Pasquale says:

    Fantastic followup, Danielle. I think the Tech Due Process article should be required reading for admin law courses–it’s really a fundamental contribution to legal scholarship on the integration of automated systems into government decisionmaking.