The Hijacking of the Lanterman Act for the Developmentally Disabled
By Raphael Metzger
Last week the California Senate Committee on Human Services held a hearing on the Lanterman Act and the future of services for the disabled. Among those present were representatives from the leadership of some of the nonprofit organizations mis-conceptualized as “regional centers created by the Lanterman Act” to serve the disabled. The fact is that the Lanterman Act did not create any of the organizations we today call “regional centers”.
Regional centers are privately run nonprofit corporations created and existing pursuant to California law governing non-profit corporations. What Lanterman did do was to create a function called “regional center” and require that DDS work through private sector contractors to implement this function. Similarly, although they are not labeled as such, the individuals, nonprofit organizations, and for-profit businesses “vendorized” through regional centers to provide services to the disabled are, fundamentally, sub-contractors.
Conflating "Function" With "Organization"
Nomenclature may be at least partly responsible for the tendency to conflate the idea of “regional center the function” with “regional center the private sector organization”. This distinction is important because the consequences of conflating Lanterman’s creation of “regional center the function” with “regional center the organization” are at the heart of many of the system’s shortcomings.
Reading the Lanterman Act as if it created the private organizations that implement the regional center function leads one to the erroneous assumption that Lanterman vested in these specific nonprofit corporations the powers to implement the regional center function. The Lanterman Act vested nothing in these specific organizations-- DDS does that, every year, when they contract with them to serve as regional centers. In fact, DDS can contract with any qualified nonprofit corporation to carry out the regional center function.
The consequences of working with the same contractor for over 40 years can be seen in the lackluster performance of DDS' regional center contractors in carrying out the Lanterman's advocacy mandate. Ordinarily, advocacy organizations comprise part of the civil society through which the public can participate in their own governance to do things such as shape policy. The contractors that serve as regional centers lack the independence from DDS to carry out this function effectively because the loyalties of regional centers are grounded with their bread and butter and sole client, DDS. This conflict between systemic and financial loyalty to DDS and the charge to serve and advocate for consumers has produced regional centers that are dysfunctional, and whose leadership stretch the limits of ethical conduct in order to relieve the dissonance resulting from the conflict between their mandate and their behavior.
A good example of this is the so-called “best practices committees” that have been concocted as a means to artificially limit the range and scope of services and supports available irrespective of individualized need. These committees establish on a macro level what should be the appropriate type and level of support or service at the individual consumer level. It is not credible to claim that there is an entitlement to individualized services for the disabled in California when Service Coordinators are required to submit draft Individual Program Plans (IPP) to a central committee uninvolved in the IPP process. What makes these “best practices” committees particularly loathsome, however, is that their effect is to maintain the illusion that services and supports for the disabled in California are still individualized, when in reality the committees do little more than provide grounds to eliminate and withhold vital services and supports.
If it Walks Like a Duck and Talks Like a Duck...
The consequences of working with the same contractor for over 40 years can also be seen in how contractors implementing the regional center function operate. They have institutional cultures that have much in common with the process-oriented, conformist, hierarchical culture typical of government bureaucracies, and bear little resemblance to the mission-driven, results-oriented culture one finds in genuine private-sector community-based nonprofits. The irony is that Lanterman required DDS to contract out the regional center function to capitalize on the creativity, innovation, advocacy, and business efficiencies found in private sector community-based organizations. Instead, whether by design or happenstance, DDS has managed in many ways to re-create itself within these private sector entities. As a result, regional centers function as state government cloaked in non-profit, private sector status exempt from the public accountability mechanisms fundamental to a democratic society.
Over forty years of noncompetitive contract renewals coupled with the ability to operate in the dark have not only made the regional center system prone to corruption and waste, but has also had a deleterious effect on the rights of the disabled. Contractors implementing the regional center function are arguably carrying out inherently governmental functions exercising discretion over the rights of individuals and the services and supports fundamental to their habilitation and/or daily living. The fact that they do so without being subject to public accountability mechanisms has created a large, multi-layered buffer zone between disabled consumers and DDS.
Habilitation is Possible
One potential bright spot in this time of fiscal crises is that there is an opportunity to make adjustments as a means of doing more with less money while promoting the development of a regional center system that is consistent with the spirit and intent of the Lanterman Act. Possible strategies to support habilitation of the system involve changes to how DDS and DDS contractors serving as regional centers carry out their duties.
Implementation of the regional center function should be competitively procured by DDS. Competition helps to drive performance and fuels innovation. It is part of what makes the private sector effective, and by failing to compete these contracts the purpose of turning to the private sector is lost.
Eliminate the lack of transparency in regional center operations. Either the entities acting as regional centers need to be deemed quasi-governmental in nature so that they are subject to the California Public Records Act, or DDS should include clauses in its contracts with regional center implementing agencies requiring disclosure of internal documents as if they were subject to the Public Records Act.
DDS should incorporate advocacy clauses into its contracts with regional center implementing partners. DDS should specifically acknowledge in their contracts for regional center services that organizations awarded the contract are expected to advocate for the disabled and will not be penalized for being an advocate. Fealty to the intent and purposes of the Lanterman Act means that regional centers must be willing to advocate for consumers against school districts, insurance companies, vendors, and even DDS itself.
Focus on quality control by develop metrics to evaluate institutional performance. Best practices committees are an ineffective means of controlling quality and do far more harm than good to consumers. DDS’s focus should be on developing metrics with public input and quality control through data collection, publication of raw data for use by researchers, and thorough, macro level evaluation of contractor performance.
Contractors serving as regional centers should diversify their funding base. Wake up! You are private, nonprofit organizations, so start acting like it. Create a development function responsible for fundraising. Your organizations cannot be content to rely on revenue from one contract year after year after year. In the real world, private non-profit organizations do something called fundraising. Additionally, a diversified funding base is required to act independently as an advocate.
Contractors serving as regional centers should undergo an internal transformation. These contractors should retain management consultants to help lead these organizations through a transformation of their institutional operations and culture. Existing leadership is unlikely to be able to do this on its own because how a genuine, community-based advocacy and service organization looks, acts, and feels is probably outside of their frame of reference.
Regional Centers must change the way it investigates and response to consumer complaints. Existing practices wherein DDS contractors conduct an investigation and then issue "findings" seems almost designed to be deceptive, leading unsuspecting consumers into believing that their request for due process has been processed and closed.
Raphael Metzger is an attorney (NY&DC) with expertise in nonprofit organization management, the California Mental Health Services Act (MHSA), and U.S. government development assistance to strengthen democracy and good governance overseas.