THE PARADOX OF REGULATIONS

by Steven J. Taylor

There once was a time when there were few rules and regulations governing the field of mental retardation. The institutions were essentially out of sight and out of mind, and their terrible conditions and abuses represented the field's dirty little secret. Then came the 1960s and the 1970s and the seemingly endless exposes of institutional conditions, law suits, and legislation designed to protect people with mental retardation from the abuses they were suffering. Now it seem, almost everything in the field of mental retardation and developmental disabilities is subject to rules and regulations.

The regulatory environment surrounding services for people with disabilities stifles innovation and creativity, places undue emphasis on paperwork at the expense of quality of services, and undermines normalization and community integration. The Medicaid program is one of the primary culprits in contributing to regulatory excess in the field of developmental disabilities. The Intermediate Care Facilities for People with Mental Retardation and Related Conditions (ICF/MR) program, other Medicaid programs (day treatment), and even the Medicaid Homes and Community-Based Services Waiver program are highly regulated and threaten to remove the heart and soul from community services. Medicaid, however, is only an extreme example of overregulation of services. Many states have developed regulations that exceed federal requirements and impose rigid rules on nonMedicaid-funded services, such as family supports. The major class action law suits of the 1970s and 1980s undoubtedly played a major role in transforming service systems from an institutional to a community-based model, but left a legacy of strict monitoring for compliance with impersonal standards based on a presumption of abuse and neglect in institutions and community programs alike.

The impact of regulations in the field of developmental disabilities is so pervasive that it extends beyond the boundaries of the service system itself into the domain of the community. In some instances, state agencies have attempted to impose regulations on nonfunded "life-sharing" arrangements and threatened to professionalize unpaid roommates and friends of people with developmental disabilities.

So, the question to be asking is not "Are services overregulated?" --because this seems like a foregone conclusion--but rather, "What should we do about overregulation given the historical pattern of abuse and neglect?" In the remainder of this article, I argue that regulations are paradoxical by nature and counterproductive to the achievements of their intended goals.

Regulations in the field of developmental disabilities represent the bureaucratization of values. The problem with rules and regulations lies not in evil intentions and narrow vision of those who promulgate them or in the insensitivity and ignorance of those who monitor their compliance, but in the bureaucratic nature of the regulations themselves. No matter how noble or humanistic the values underlying rules and regulations, the process of bureaucratization distorts those values and makes it less likely that they will be fulfilled. As Blatt (1981) wrote, "Surely there can be no doubt that if `Love thy neighbor' were a federal regulation, it would become meaningless and useless" (p.346).

Regulations reflect the abuses of the past, and sometimes the present, but circumstances the potential of the future. The rules and regulations governing the field today are an outgrowth of institutional abuse and are designed with institutions in mind. For every form of evil and abuse that has been found at institutions, someone has come up with a rule or regulation to address it. Regulations are not without their rationales. When taken out of the institutional context, regulations lose their rationality. Regulations presume the impersonal, hierarchical, and bureaucratic structure of institutions. The further removed from this structure, the more irrational and counterproductive they come. Herein lies the paradox: In order to meet the regulations, as setting or a home must become impersonal, hierarchical, and bureaucratic, and these are some of the features that made institutions dehumanizing and abusive in the first place. As the field tried to move toward more person-centered and less institutional approaches to supporting people with developmental disabilities and their families in the community, regulations threaten to drag it back to the institutional model. It is a bit like subjecting home-cooked meals to the same rules that govern fast-food restaurants. This is the surest way to destroy the home-cooked quality of the meals.

Regulations are best suited to unnatural environments but encourage investment in those environments. The more unnatural the setting--the more it departs from typical home and family life--the more highly regulated it should be, at least at face value. Because institutions represent the most extreme form of unnatural settings, it follows that they should be subject to the most stringent regulatory requirements. Regulations and institutions seem to deserve each other. The closer any setting approximates an institution, the more highly regulated it should be. This leads to yet another paradox of regulations in the field of developmental disabilities: the more highly regulated a setting, the more resources it requires, and the fewer resources that are available to alternative settings.

Regulations foster ritualistic compliance and not fulfillment of their spirit. The more rigid the rules and regulations, the more compliance with them becomes an end in itself. Institutions and ICFs/MR become consumed with demonstrating compliance with the active treatment provisions of federal regulations, and the goals of active treatment take second place. Paperwork becomes synonymous with programming and looking good replaced doing good.

Regulations place control and power in the hands of regulators, and not people with developmental disabilities and their families. People with developmental disabilities and their families are often called "consumers" of services, but they are actually third parties in transactions between funders, with their funds and regulations, and public and private agencies, with their programs and services. Rules and regulations, whether imposed by federal programs, state agencies, or courts, place regulators and monitors as the guardians and protectors of people with developmental disabilities and their families and, in so doing, deprive them of control over their own lives.

Regulations direct attention to concrete and tangible things and trivialize the most important things in life. A final paradox of regulations is that the most important things in life are the most difficult to measure objectively. As a consequence, tangible things, such as the number of square feet per bed, and trivialize the most important aspect of services. Active treatment comes to be equated with paperwork, rather than the quality of programming. This is why dismal programs with good policies and plan can attain certification and good programs with insufficient paperwork can be cited for deficiencies.

Regulations are often criticized for their narrow focus on the medical and treatment aspects of services to the exclusion of community integration and normalization, or social role valorization. Some states are actually moving to incorporate integration and normalization into their regulatory schemes and to require agencies to implement "outcomes"--oriented data-collection systems. Because regulations emphasize tangible things and trivialize important things, such schemes are doomed to suffer from the same problems characterizing other regulations.

If regulations represent a paradox, what are the lessons for regulatory reform in the field of developmental disabilities? First of all, we need to be modest in our expectations of regulations. In view of the historical pattern of abuse and neglect of people with developmental disabilities in institutions and other settings, regulations are a necessary evil to content with evils in the world. Because of their inherent limitation and counterproductive effects, however, we cannot expect impersonal rules and regulations to produce quality services or decent lives for people with developmental disabilities, and, in fact attempts to do so may actually have the opposite effect. Regulations should be kept to a minimum and confined to concrete health, safety, and related issues.

Second, regulatory reform will depend on reform of the current developmental disability service system. The current regulatory framework is an outgrowth of a service system dominated by institutions and agency-owed and operated facilities. As long as people with developmental disabilities remain in institutions, community ICFs/MR, group homes, and similar settings, these facilities should be subject to regulations. If, however, the service system and funding mechanisms shift to subsidies and voucher approaches for people with developmental disabilities and their families that place control directly in the hands of those who receive services, the need for regulations will be greatly reduced.

Third, as an alternative to the current regulatory framework, people with developmental disabilities and their families should be provided with clear-cut rights and due process mechanisms through which to exercise those rights. Despite its shortcomings, P.L. 94-142 contains vastly superior protections to the highly regulated ICF/MR program. If people with families can act on their own behalf as opposed to depending upon regulators and monitors, then disputes within the service system can focus on important things rather than the superficial aspects of services.

Finally, informal mechanisms to promote the quality and responsiveness of services--agency self-evaluations, consumer surveys, self-advocacy, citizen advocacy--need to be supported and encouraged. These are not a substitute for formal mechanisms in all cases, but in the long run stand a better chance of achieving quality of services or life.

Many states are experimenting with more flexible and responsive approaches to support children and adults with developmental disabilities in the community, and even some recent federal court orders have incorporated them. These approaches hold great promise, but it remains to be seen whether they will fall prey to the regulatory excesses dominating the field today.

Reference

Blatt B. (1981). In and out of mental retardation. Baltimore: University Park Press.

This is a revised version of an article that appeared in Mental Retardation, 30(3), 180-195.


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