Accountable Strategies blog

A blog about accountability issues in the public, private, and nonprofit sectors

Posts Tagged ‘privatization’

The value of our public employees

Posted by David Kassel on March 3, 2011

The battles over collective bargaining in Wisconsin and now Ohio are raising questions about how much we value our public employees and recognize that the work they do matters.

It has taken these standoffs in these state capitols to bring a needed focus on the effects of years of public sector downsizing and denigration of public servants at all levels of government by Republicans and Democrats alike.

In an article in the January/February issue of Public Administration Review, Phillip Cooper, a professor at the Hatfield School of Government at Portland State University, makes the case that even President Obama has a lot to learn in this regard.  In “The Duty to Take Care: President Obama, Public Administration, and the Capacity to Govern,” Cooper argues that the president still doesn’t appear to understand the degree to which his own exeutive branch has been stripped of its capacity to manage the nation’s public business and “faithfully execute the laws.”

Obama, Cooper says, is a talented politician and leader who came to office with major policy ideas and a plan to improve government performance by using technology, in particular.   All of these things require a commitment of resources,  including expertise, planning and coordination, by public agencies and their employees.

Yet, due to the “the actions and inactions of his predecessors of both political parties,”  President Obama “has inherited a capacity crisis that will stand in the way of the accomplishment of his constitutional duty and the obligations of the federal government,”  Cooper writes.   It’s a capacity crisis of which the president “has not demonstrated an awareness.”

Moreover, during his campaign for the presidency and after taking office, Obama has used what Cooper characterizes as “unhelpful rhetoric” regarding public employees such as talking about “bloated bureaucracies” in Washington and promising to cut the budget deficit significantly by eliminating “too many layers of managers” and excessive paperwork.  Whether you agree or not that there is significant waste and inefficiency in the public sector, this is the type of rhetoric that has driven the downsizing of government and the increased outsourcing of government functions since the 1970’s.

Cooper notes that the result of this continual downsizing has been a loss of capacity in the executive branch — and the regulatory agencies, in particular — to function effectively.   Government downsizing began in the 1970s;  and Cooper tracks this trend from the Carter administration through Bush 2.  During this same period of time, he points out, work demands on these agencies increased substantially.

By 2003, the Government Accountability Office was reporting that contracting out of public functions had risen dramatically across federal agencies while the federal workforce available to manage those contracts had decreased just as dramatically.   Failures in government performance began to mount  — notably, the poor contract management of the U.S. reconstruction effort in Iraq and managerial fiascos in the Department of Homeland Security and in the response to Hurricane Katrina.

In my own book, “Managing Public Sector Projects: A Strategic Framework for Success in an Era of Downsized Government,” I discuss some of the consequences of this downsizing at the federal and state levels, from the lack of control over Big Dig project in Boston to the government’s reliance on contractors themselves to manage other contracts in Iraq.  (I sent a copy of the book to the White House, by the way.)

Cooper discusses a number of President Obama’s policy initiatives since taking office, including his advocacy of the economic stimulus package that emerged from Congress as the American Recovery and Reinvestment Act of 2009 (ARRA), and his health reform law and Wall Street reform legislation.  Each of those policy initiatives requires effective and coordinated management by public agencies, including “massive service delivery, payment and regulatory systems,” which simply don’t exist at the present time.  Moreover, key appointments to high-level administrative posts that could help bring about that coordination were delayed for months.

Cooper notes, in particular, a 10-month delay by the Obama administration in naming a director of the Office of Federal Procurement Policy, an agency vital to the effective management of ARRA.  There were also significant delays in naming directors of the Office of Personnel Management and the Office of Information and Regulatory Affairs, an agency critical in addressing failures in the regulatory system.

Even President Obama’s laudable initiatives to improve transparency in government through the introduction of new websites on agency performance were not carefully implemented or effectively staffed, Cooper maintains.  For instance,, a website intended to track grant applications and spending, was quickly overloaded by ARRA expenditures and faced the possibility of a shutdown.

Cooper concludes that:

The capacity challenge is…sufficiently grave, not only across the federal government but throughout the intergovernmental system, that it requires serious and direct presidential attention and commitment. 

Thus far, we haven’t seen that commitment from this White House.  Let’s hope we do, and that it ultimately affects all levels of government.  A real commitment by this president to restoring the government’s capacity to function effectively would go a long way toward achieving the goals for which thousands of people are now fighting in Wisconsin and Ohio.


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Our last Fernald post

Posted by David Kassel on October 27, 2010

[Note:  Cross-posted from Blue Mass Group.   This is my last post on behalf of my client, The Fernald League, Inc., which will be disbanding at the end of this year.]

It’s been more than three years since I began posting on Blue Mass Group as part of a campaign by families and guardians of residents of The Fernald Developmental Center to save their longtime home in Waltham, Massachusetts.  After close to 90 posts, this will be the last on behalf of this family and guardian-run organization.

That doesn’t mean the campaign to save the Fernald Center is over or that I won’t write about this subject on behalf of another organization in the future.  But the Fernald League has decided the time has come to end its role in the campaign to save the Center and will officially disband at the end of the year.

The Fernald League is a family-supported nonprofit organization that has been in existence since 1956.  The League has always been initimately tied to the Fernald Center,  the nation’s oldest state-operated facility for persons with intellectual disabilities. It was among the original plaintiffs in class-action lawsuits that were brought in the 1970s to improve conditions at Fernald and other state facilities for people with mental retardation.  (More about that later.)  

As any regular reader of these posts knows, two sucessive administrations have dedicated themselves to closing Fernald and at least three of the five other remaining state-run developmental centers in Massachusetts.  Fernald was supposed to have been declared dead as of last June 30, and is only clinging to existence due to administrative appeals filed by about 20 gritty remaining guardians of the transfers of their wards.

In addition to the Fernald Center, the Patrick administration has targeted the Monson Developmental Center in Palmer, the Glavin Regional Center in Shrewsbury, and the Templeton Developmental Center in Baldwinville for closure by Fiscal Year 2013.  The administration has indicated that no final decision has been made regarding the future of the two remaining developmental centers — the Hogan Regional Center in Danvers and the Wrentham Developmental Center. 

Those Fernald Center guardians, who have chosen to continue their fight, strongly believe that they have a chance of outlasting the Commonwealth’s facility-closure effort.  They’ve formed a group called Fernald Forever Families and have gotten funding for their legal costs from the Massachusetts Coalition of Families and Advocates (COFAR) and other organizations.  We wish them the best of luck in their fight and are happy to pass the torch to them. 

In this last post, I’d like to make a few points about our fight to save Fernald and about our blogging effort on BMG.

First, we’ve always considered the battle to save Fernald to be about more than Fernald alone.  Fernald’s families and guardians have long viewed the Center as a safe and caring home for their vulnerable siblings and children and consider its pending closure a betrayal of a basic obligation of the Commonwealth.  

We disagree with the assumption held by many in the media, in particular, that the closing of Fernald is strictly a local issue.  That claim is wrong based simply on the fact that Fernald is the first of four remaining developmental centers around the state that the administration has marked for closure.  On that basis alone, this should be seen as a statewide issue.

More importantly, Fernald and the other developmental centers should be seen as examples of a level of federally prescribed care that is fast disappearing in an age of privatized public services.  In seeking to close these centers for the intellectually disabled, the Patrick administration is pushing us well down the road of privatization in this state.

Whether you agree that ending the model of developmental center care and privatizing human services is good or not, you have to agree that Fernald’s closure is part of a larger issue.  It’s an issue that has to do with the type and level of care that the government has an obligation to provide to its most vulnerable citizens.

Dealing with myths

As part of our effort to demonstrate the larger context of the fight over Fernald, we have tried to hold two myths about Fernald and the other developmental centers up to the light of public scrutiny.  The first is the myth that this type of care is outdated and that the developmental centers are “antiquated” and “segregated.”  The second is the myth that closing the developmental centers will save taxpayers large amounts of money.

I’d venture to say the vast majority of our posts have been aimed at exposing these myths for what they are.  I’m not sure we’ve been successful.  The juggernaut of interests that have propagated these two myths has been so relentless that most people automatically assume them to be true.

The myth that the developmental centers are “antiquated” and “segregated”

There is no question but that the campuses of many of the developmental centers are large and that many of the buildings on those campuses are old.  In some cases, previous administrations have chosen to abandon some unusable buildings on the Fernald campus rather than demolish them.  But that has little if anything to do with the care and conditions inside the renovated buildings that are in use.  And it has nothing to do with the ability of the developmental center staffs to integrate the residents into the life of the communities around them. 

The campus of Harvard University is old too, but no one is saying that that institution is therefore antiquated or segregated.  Similarly, does anyone contend that all condominium complexes, retirement communities, assisted living facilities, and nursing homes are antiquated and segregated?

Here, once again, is what the American Health Care Association has to say about today’s developmental centers for the intellectually disabled, throughout the country:

Changes and improvements in (developmental center) support and training services have created one of the most progressive and technically advanced programs anywhere in the world. For residents, quality of life has improved dramatically, as access and choice have become hallmarks of the (developmental center) program. Support and training programs now provide them with increased opportunities to live in more home-like, less restrictive settings and, to the extent possible, to become a more integral part of their communities.

As we’ve pointed out over and over again, care and conditions were vastly improved in the developmental centers in Massachusetts, starting in the late 1970s, as a result of a landmark class action lawsuit.  Much of the credit for the improvements has to be given to the families of the residents of the then Fernald, Belchertown, Wrentham, Dever, Monson, and Templeton State Schools, who filed the initial class action suits, which were then combined into one overall case.

And much credit has to go to U.S. District Court Judge Joseph Tauro, who oversaw the overall Ricci V. Okin case.  Judge Tauro personally visited all of the state schools and issued dozens of orders for improvements in care and conditions in them.  When he formally disengaged from the case in 1993, Tauro filed a statement that descrbed a process since the 1970s that:

 …has taken people with mental retardation from the snake pit, human warehouse environment of two decades ago to the point where Massachusetts now has a system of care and habilitation that is probably second to none anywhere in the world.

Only in recent years have the Romney and Patrick administrations let those conditions deteriorate at Fernald as they cut the facility’s budget and laid off staff.

Today, the six developmental centers remaining in Massachusetts are the only publicly financed providers in the state of federally prescribed Intermediate Care Facility-level services.  ICF-level care is specified in Title XIX of the Social Security Act, which authorizes Medicaid funding to the states.  ICF-level care specifies, among other things, that doctors and nurses must be on site 24 hours per day.  In contrast, community-based group homes in Massachusetts operate under a waiver of the ICF requirements.  Among other differences, there is no on-site requirement for doctors and nurses in the community system. 

Yet the high level of ICF care and the history of the improvements made in the developmental centers is never cited by those who are seeking to close them.  In their report issued in August, which called for the closure of all six remaining developmental centers in Massachusetts, the Massachusetts Taxpayers and Boston Foundations simply referred to the centers as “antiquated” and “isolated.”  How and in what way these characteristics are supposedly true are virtually never explained. 

Here, in fact, is the only explanation in the MTF/BF report we could find regarding the “isolation” charge:

…many institutions are located on multi-building campuses in rural areas, making them hard to reach without a car, and isolating those being served from their families and communities, and making it difficult for families to visit or participate in treatment or planning for aftercare.

First of all, the Fernald, Hogan, and Glavin centers are located in urban or suburban areas, not rural, areas.  And the fact that the Monson, Templeton, and Wrentham centers are located in what might be considered rural areas is largely due to the fact that they are located in parts of the state that are largely rural.

And “hard to reach without a car?”  Do the authors of the MTF/BF report believe that the families of developmental center residents will no longer need to drive their cars to visit the community-based group homes around the state in which the MTF and BF want all persons with intellectual disabilities to be placed?  The developmental center families know that the closures of the developmental centers will almost invariably mean longer drives to visit their loved ones once they are dispersed around the state in group homes.

Then there’s the Massachusetts Arc, whose members include human service vendors who will get more contracts with the state when residents are transferred from developmental centers to the group homes they run.  The Arc loves to throw out the term, “segregated,” to describe Fernald and the other developmental centers.

The loaded charge of segregation is a particularly galling one to families and advocates of the developmental centers.  They know that these centers are closely integrated with their surrounding communities.  At Fernald, the Greene pool and gymnasium have been used extensively by community clients of the Department of Developmental Services.  The Tufts dental clinic, which The Fernald League played a role in saving from closure this year on the Fernald campus, also primarily serves community-based clients. 

That integration has worked in the other direction as well.  Developmental center residents routinely go to movies, restaurants, and community events, and even on vacations with staff.  As one Fernald League member describes it, Fernald operates much like a condominium complex or retirement community in that respect.

The myth of fiscal savings in closing the developmental centers 

Perhaps in no other area did we spend more time and effort than in scruitinizing and ultimately rebutting the administration’s claims that closing the developmental centers will save millions of dollars in taxpayer money. 

From our very first BMG post on August 16, 2007, we criticized the mainstream media’s unquestioning acceptance of the savings claims.  Unfortunately, our admonitions appeared to have little effect.  The administration has only had to make the pronouncement that the cost of developmental care is “X” and the cost of community-based care is “Y,” and the media have dutifully repeated that claim.  We’ve never seen any independent scrutiny by any media organization of the administration’s numbers or analysis.

Similarly, in their August report, the MTF and BF relied entirely on the administration’s cost analysis in their recommendation that all six remaining developmental centers be closed.  The two organizations did no independent analysis of the cost issue whatsoever.

In October 2007, we examined budget documents for Fernald, and later we examined records of the community-expansion and-facility-closure-based costs not counted by the administration in its savings claims.  Those included costs such as the $3.2 million we found that the state was spending earlier this year on renovating the Wrentham Developmental Center to accomodate some 60 Fernald residents.  We also examined lease arrangements for new community-based group homes built for Fernald residents that ran as high as $2 million or more per home over a 20-year period.

Based on our review of the Fernald documents in 2007, it was clear that the administration had simply divided the total Fernald budget by its population of residents in arriving at a cost-per-resident of $239,000 for Fiscal Year 2008.  We believe this method overstated the cost per resident because it didn’t take into account the fact that a portion of Fernald’s budget paid for programs or services that benefitted community-based residents.

In addition, the documents we initially received from the Department of Developmental Services provided no indication of how the administration had come up with a claimed cost of $102,000 per resident for care in the community system.  DDS later provided us with a different set of documents that purported to show how that number was derived.  More importantly, the DDS Commissioner Elin Howe acknowledged in a letter to us in November 2007 that the $102,000 cost was based on the average cost of residential care in the community system.

In other words, in stating that community-based care was cheaper per resident than developmental-center care, the administration was comparing the average cost in the community to a calculated cost of care at Fernald.  This was an apples-to-oranges comparison because Fernald has always served a population with a much more profound level of mental retardation and more severe medical needs on average than the population in the community system.

As Kevin Walsh, the lead author of an analysis of cost studies in the journal Mental Retardation, stated in 2009, costs don’t disappear when people are moved out of the developmental centers.  They show up elsewhere, in Medicaid and in budgets of other agencies such as the Department of Housing and Urban Development and the Department of Agriculture.

We have also pointed out that the Patrick administration’s projected increases in funding to community-based care have not occurred as the Fernald Center has been phased down toward closure.  In fact, the administration has continued to cut community-based line items in the state budget.  Even the Arc and its related organization, the Association of Developmental Disabilities Providers, have contended that the administration’s facilities closures must be accompanied by adequate funding of the community system.  That hasn’t happened, they acknowledge.

The lack of a plan

The larger issue behind the administration’s apparent inconsistency in closing developmental centers without increasing community-based program funding lies in its apparent lack of a plan for the future of the entire system of care for the intellectually disabled in Massachusetts.

Rather than taking time and effort to develop a comprehensive strategy for care into the future, the administration has latched on to one tactic — dismantling the developmental centers.

We have frequently pointed out problems endemic to the community system, including high levels of turnover and low pay and benefits in comparison with the developmental center-system.  At the same time, thousands of people have been waiting for care in the community system, partly because the developmental centers have largely been closed to new admissions since the 1980s. 

In fact, as DDS has built or developed community-based group homes, it has given preference to former developmental-center residents for those placements, passing over people waiting in the community.  And those people in the community with lower levels of functioning have been systematically discouraged by DDS from even applying to live in the developmental centers. 

As we have noted, the DDS’s 2009 Community Services Expansion and Facilities Restructuring plan is a “community services expansion” plan in name only.   This plan projects the development through Fiscal Year 2013 of only enough new beds in the DDS system to accomodate residents of the developmental centers slated for closure.  There’s nothing in the plan to accomodate the thousands of other people waiting for services.

The silence of the opponents

We’ve made our points repeatedly about the administration’s lack of planning and the importance of developmental-center care.  In response, there has largely been silence from those advocating the closures of the developmental centers.  DDS Commissioner Howe has responded to our letters to her, but neither she nor anyone else in the administration has ever directly responded to our public posts, even though the governor and members of his administration and advisors certainly read BMG and have often posted here themselves. 

The Arc has almost never directly responded to us either, although one or two of its members have occasionally criticized our posts (usually without responding to the specific points made in those posts).

Clearly, the opponents of the developmental centers have made it a deliberate strategy to ignore our arguments.  There are good reasons for that strategy.  Why get into a discussion about substance when it works to toss out terms like “segregated” and “antiquated?” 

We speculated in our second-to-last post here that one reason for the administration’s silence has had to do with its unwillingness to draw attention to the developmental center closures during the governor’s re-election campaign.  As Thomas Frain, an attorney representing four of the Fernald guardians who are appealing the tranfers of their wards, pointed out, “There’s nothing to be proud of in evicting retarded people from their homes.”

That, of course, hasn’t stopped the administration from proceeding full-speed with the Fernald closure behind the scenes.  As we noted, the administration has employed no fewer than seven DDS attorneys to fight the ongoing administrative appeals by the Fernald guardians.

Howe also worked behind the scenes during the past two years to stifle attempts in the Legislature to require a cost analysis by the administration before it could move to close the Fernald Center.  As a result, Fernald was exempted from a cost-analysis requirement that applies to the three other developmental centers slated for closure.  This, despite the personal promise that Governor Patrick made to a Fernald family member that such an analysis would be done.

The Postage Stamp proposal

That silence among the developmental center opponents has extended to the longstanding proposal by The Fernald League and other developmental-center advocates to scale back the footprint of the Fernald Center.  Even The Boston Globe, which rarely covers the Fernald closure issue anymore, suggested some time back that the postage stamp would be a natural basis for a compromise.   In September 2007, The Globe wrote an editorial endorsing the postage-stamp approach and stating that:

Instead of wasting money and good will on litigation, administration officials should meet with families of Fernald residents to discuss ways of keeping their loved ones in the place they have been in for decades – while making other parts of the campus available for other purposes.

Of course, what actually happened is that the administration chose to waste money and good will on litigation and never did meet with the families to discuss any sort of compromise.  The Globe wrote this editorial just after the administration appealed a ruling in August 2007 by U.S. District Court Judge Joseph Tauro that Fernald should remain as a residential option for its current residents. 

DDS Commissioner Howe dismissed the postage-stamp proposal in her November 2007 letter to us, saying it would require renovations to 60 percent of the Fernald campus.  Unfortunately, no one at DDS ever talked to former Fernald League President George Mavridis, who developed the plan, and who could have told Howe that she was wildly overstating its scope.  Mavridis maintains the scaled-back center would have occupied 30 percent of the campus or less, under his plan.

Abuse and neglect

While the administration has maintained radio silence on the developmental-center closure issue, organizations such as the Arc and the Mass. Taxpayers and Boston Foundations have used their own websites to make the administration’s case for it.

Many examples of that willingness to help the administration can be found in the MTF/BF report referred to above — particularly in the flawed finding in the report that there are relatively low levels of abuse and neglect of DDS clients in the community system.  The report concluded that statistics from the state Disabled Persons Protection Commission show that the community system is at least as safe, if not safer, than the developmental centers.

We examined the MTF/BF’s findings carefully and reviewed the DPPC’s data in question.  What we found is that the MTF/BF report made a key mistake in its interpretation of the data.  The DPPC numbers only showed that the rate of investigations of neglect and abuse complaints was higher in the developmental centers than in the community system over a three-year period through Fiscal Year 2009.  The MTF/BF report erroneously stated that this data involved “substantiated cases” of abuse and neglect.

As we pointed out in a post here, a higher rate of investigations of complaints in the developmental centers may well mean the centers are safer than the community system.

No potent political constituency

Judge Tauro stated many years ago that the intellectually disabled “have no potent political constituency.”

At some point during the past two years, the Fernald Center’s families and guardians learned this for themselves.  They learned, in particular, that they had few friends in the Legislature, the Judiciary (with the notable exception of Judge Tauro) or in the media.

With the exception of a handful of legislators, the Legislature has turned its back on Fernald.  I’ve noted the Legislature’s move two years in a row to remove Fernald from a cost-analysis requirement prior to shutting the developmental centers.

In the media, The Globe, in particular, seems to have done an editorial about-face on Fernald.  In June 2007, The Globe came down unequivocally on the side of Judge Tauro in his decision to keep Fernald open as a residential option.  In “The Folly of Closing Fernald,” The Globe wrote that the existing Fernald residents:

…deserve to live out their lives in familiar surroundings without fear of eviction…

Faced with a human services dilemma, the Patrick administration is ducking the issue and whining instead that a federal judge has no business intervening in a state matter. If anyone has a right to intervene, however, it would be Tauro, who monitored Fernald for decades.

The real issue is the wisdom of allowing mentally retarded residents, including many with complex medical problems, to remain in the only home they know and receive the consistent services they need from a staff that includes on-site doctors. This is a question of common decency, not states’ rights. And the right answer is to leave Fernald residents in place and in peace (our emphasis).

But after the U.S. First Circuit Court of Appeals overturned Tauro’s ruling that Fernald remain as a residential option by ruling that he should not have reopened the Ricci v. Okin case, that editorial support from The Globe  all but evaporated.  In October 2008, The Globe editorialized that the Appeals Court decision  was “the beginning of the end for the Fernald Developmental Center…”  (The Appeals Court, by the way, did not rule on the merits of Tauro’s order that Fernald remain as a residential option.)

The 2008 Globe editorial, titled “A losing battle for Fernald,” went on to state that there was “little if any legal recourse remaining” for the Center’s residents.   And far from criticizing the Patrick administration for “wasting money and good will on litigation,” The Globe now editorialized that the Patrick administration was doing everything right.  Unlike the Romney administration, the editorial stated: 

…the Patrick administration’s health and human services officials appear willing to help Fernald residents make the transition (to community-based care) as painless and unrushed as possible.”

Painless and unrushed for whom exactly?  Here was an administration that was closing developmental centers in Massachusetts without an overall plan of care for the entire DDS system.  And here was an administration that was refusing to meet with the families, as The Globe had earlier urged it to do, and was refusing to leave the Fernald residents “in place and in peace,” which The Globe had previously said was a matter of common decency.

The kidnapping of Anna Tross

The eviction process was certainly not painless and unrushed for Anna Tross — a situation which The Globe certainly knew about when it ran its October 2008 editorial.

As we reported here, Anna Tross was taken from Fernald involuntarily in February 2008 and placed in a newly constructed group home in Bedford, after her corporate guardian approved the move.  Tross was 91 years old and had lived at Fernald for 50 years.  She was blind and had congestive heart failure and moderate mental retardation, but was verbal.  Tross was possibly the first Fernald resident to be transferred involuntarily from the facility.

According to testimony at a March 2008 hearing held by Judge Tauro into the circumstances surrounding Tross’s removal from Fernald, Tross had told several people that she didn’t want to leave Fernald.  On the pretext that she was being taken off the campus for a cup of coffee, she was driven to the Bedford residence.  She never was returned to live at Fernald and she died at the group home a little more than a year later.

According to court records, Fernald guardians and staff who tried to visit Tross in the group home were repeatedly turned away.  She was seen only one more time at Fernald, when she was taken to the dental clinic there about six months after she had been placed in the group home.  Staff reported that she had lost weight, had a black eye, and appeared sedated.

During the hearing held by Tauro, Tross’s original case manager testified that she had objected to the transfer of Tross and a number of other Fernald residents to the group home.  All of those residents had the same corporate guardian, the Arc of Greater Boston, a DDS-funded human services provider.  The Greater Boston Arc subsequently stripped the case manager of her caseload and replaced her with a new case manager, who approved the transfers. 

The Globe covered the hearing on the Tross case in detail, although, despite our repeated requests, the paper never followed up on the story.  Following that hearing, Tauro appointed then U.S. Attorney Michael Sullivan to investigate the case.  

Numerous questions surround this case.  Among them, why did the Patrick administration choose a 91-year-old woman with congestive heart failure to be among the first people it would seek to remove? 

In a previous report to Judge Tauro in 2007, then U.S. Attorney Sullivan had warned that:

…some of the residents at Fernald could suffer an adverse impact, either emotionally and/or physically, if they were forced to transfer from Fernald to another (developmental center) or to a community residence.

Sullivan recommended in that 2007 report that the administration come up with a plan to enable Fernald to remain open.

Certainly, it would not seem to make sense to select a very elderly and ill resident, who had clearly voiced her preference to remain at Fernald, as one of the first to be transferred.  At the time of Tross’s transfer, there were some 170 residents remaining at the Center.  But Tross and the handful of other Fernald residents who were moved with her to the Bedford residence did not have family members as guardians. 

Unfortuantely, Sullivan’s report on the Tross case has never been publicly released.  After the First Circuit Court of Appeals overturned his 2007 ruling that Fernald remain as a residential option, Tauro closed the Ricci v. Okin case and sealed the documents. 

The battle continues

In its 2008 editorial, The Globe was wrong about at least one other thing, in addition to its statement that the Fernald closure was painless and unrushed.  That was the editorial’s contention that there was little if any legal recourse left for the Center’s residents in the wake of the Appeals Court ruling.

At that time, an appeal to the U.S. Supreme Court and administrative appeals were still available as options to the Fernald guardians.  The Legislature was also a possible avenue to pursue in keeping Fernald open.

The Fernald families and guardians went on to exercise all of those options.  In February 2009, the Fernald plaintiffs, represented by Hofstra University law professor Leon Friedman, filed a petition for Certiorari with the Supreme Court, seeking to restore Judge Tauro’s 2007 order keeping Fernald open as a residential option.  The petition also sought to resolve the issue of whether Appeals Courts should give deference to district court decisions in consent-decree cases.  In this instance, the First Circuit Court acknowledged that it had not given any deference to Judge Tauro, despite his 35 years of expertise in overseeing the Ricci case.

The Supreme Court declined without comment to issue a Writ of Certiorari to consider the Fernald plaintiffs’ appeal.  After that, the Fernald League encouraged its members to file administrative appeals with the state of individual notices of tranfers of their wards.  The League has also respected the wishes of those guardians who have chosen to end their personal battles with the administration and to agree to move their wards elsewhere.

Today, we are in the middle of that administrative appeals process.  The closure of the Fernald Center has been pushed back to next year, pending the outcome of those appeals.

We’d like to thank all of those members of the BMG community who commented on and recommended our posts, in particular, AmberPaw and ssurette, Justice4All, Mav, Peter Porcupine, adnetnews, truth.about.dmr, PaulSimmons, and others who have made many great contributions over the past three years.

I would also like to commend volunteers such as Marilyn Meagher, the Fernald League’s current president, who personally made the betterment of Fernald and the lives of its residents her own life’s work.  And kudos to the volunteer members of the Building Representative Committee at Fernald, who kept close track over the years over the care and conditions in the Center.

If nothing else, we have all worked together to celebrate the value of the Fernald Center and to shine a light on the record of this and the previous administration in carrying out its mandate to care for some of the state’s most vulnerable citizens.

Posted in Nonprofit, Oversight, Private, Public | Tagged: , | Comments Off on Our last Fernald post

The politicized presidency

Posted by David Kassel on August 9, 2010

Using the term “politicized presidency” might sound at first like an exercise in redundancy.

What presidency isn’t politicized?  But Donald Moynihan and Alasdair Roberts draw a distinction between “politicized” and “political.” 

In “The Triumph of Loyalty Over Competence: The Bush Administration and the Exhaustion of the Politicized Presidency”  (July/August 2010 issue of Public Administration Review), the authors make a case that the administration of George W. Bush went further than any others in history in subordinating hiring and decision-making to political considerations.

The result was a disaster, not only for Bush’s popularity toward the end of his second term and potentially for his legacy, but for the institution of the presidency itself.

The question the authors leave unanswered is how far the Obama administration intends to go, or has gone, to de-politicize the office of the presidency.  They point out that Barack Obama made an early effort to avoid shows of excessive partisanship, particularly in his decision to retain a Bush appointee, Robert Gates, as secretary of defense.  But politicization of the presidency may only be in remission, they say.

I would suggest that in one respect, Obama appears to have shown the same impulse as Bush and other recent presidents; and that is the impulse to reduce the power of career bureaucrats though privatization of governmental functions.  (See Rick Cohen’s interesting series in The Nonprofit Quarterly on the Obama administration’s push for more privatization and free-market approaches in public housing services, education, and other governmental functions.) 

It may not be the case that Obama is pushing privatization for the same political-loyalty-inspired reasons as Bush.  But that may not make a lot of difference to the career employees who lose their jobs as a result.

Moynihan and Roberts state that starting with Andrew Jackson, the decision to politicize a presidency has been connected with a distrust of the federal bureaucracy and of career employees, who are seen as hostile to presidential goals because of professional and ideological biases.  

They suggest at least three basic characteristics of a politicized presidency: 1) Expansion of the number of political appointees in the administration, with more weight given to loyalty than merit in hiring; 2) the transfer or termination of career officials in the bureaucracy who are deemed untrustworthy; and 3) the centralization of key decision-making in the White House.

It would be hard for Obama to top George W. Bush in the politicization arena.  Moynihan’s and Roberts’ article doesn’t provide new disclosures about  Bush.   But they put enough examples together that the case against the Bush presidency appears fairly persuasive.  We still clearly remember the debacle of the appointment of Michael Brown to head FEMA, for instance.  Brown and other senior appointees in FEMA lacked emergency management expertise, the authors note, but had “significant political campaign experience.”

Then there were the forced resignations of the U.S. Attorneys and the hiring at DoJ of politically connected yet inexperienced personnel such as Kyle Sampson, a classmate of Vice President Dick Cheney’s daughter, and Monica Goodling, who had been an opposition researcher for the Republican National Committee.  

Moynihan and Roberts also recount the case of Bradley Schlozman, a political appointee at the DoJ’s Civil Rights Division, who apparently had high-level personnel hiring and firing responsibilities there.   In email comments, Schlozman repeatedly referred to conservative applicants as “real Americans.”  He also wrote, regarding existing employees, that, “My tentative plans are to gerrymander all of those crazy libs right out of the section.”  He apparently had quite a bit of success in doing so.

And then there were the political considerations that colored the hiring of staff to manage the U.S. reconstruction efforts in Iraq.   Moynihan and Roberts rely heavily here on Rajiv Chandrasekaran’s excellent book, “Imperial Life in the Emerald City: Inside Iraq’s Green Zone,” for details on the White House’s insistence that job applicants in the reconstruction management effort be screened for loyalty to the Republican Party and the president.

As I point out in my own book, Managing Public Sector Projects,” the Iraq reconstruction has been marred by poor to nonexistent planning, shoddy and delayed project work, and a failure to properly account for billions of dollars in U.S. taxpayer money spent there.

In addition to hiring politically connected personnel, there is also the “assault on rationality in decision making” that the Bush administration engaged in as part of its politicization efforts.  These ranged from alterations by the EPA of scientific reports on climate change to opposition by the Food and Drug Administration to the vaccination of young women against the human papillomavirus, the most common sexually transmitted disease in the United States.

Moynihan’s and Roberts’ article might be no more than an interesting discussion of recent history, were it not that they ask the larger question whether the politicized presidency is on the wane or in remission.  The article also started me wondering whether some of the characteristics of politicization may have also spread to the private sector.

In today’s highly competitive job market, we hear, for instance, about applicants “dumbing down” their resumes in order to persuade potential employers that they won’t leave for higher-level opportunities when the economy improves.  In other words, are employers looking these days–as the Bush administration did a few years ago– for loyalty over expertise and experience?

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A case for keeping the Pacheco Law

Posted by David Kassel on June 23, 2010

(Cross-posted from Blue Mass Group, and posted on behalf of The Fernald League, Inc.)

It seems to have become almost conventional wisdom in Massachusetts that it’s long past time to repeal the Pacheco Law, which has supposedly put the brakes on contracting out for services as a way to save taxpayer dollars.

The law, which was named for its original sponsor, State Senator Marc Pacheco, a Taunton Democrat, has gotten more bad press over the years, it seems, than just about any other single piece of legislation in this state.

What does the Pacheco Law do?  It essentially requires that a cost analysis be done before state operations can be privatized.  It authorizes the state auditor to undertake that analysis by comparing bids from private contractors to a calculated cost of continuing to perform specified work in-house “in the most cost-efficient manner.”

Sounds fairly common-sensical.  Yet, to say this law isn’t popular with many commentators and politicians would be an understatement.  Why?  Probably because the law messes with the sacrosanct private sector.


GOP gubernatorial hopeful Charlie Baker has listed repealing the Pacheco Law as one of his “Baker’s Dozen” proposals for reducing public sector costs.

The Boston Globe has editorialzed against the law as “wasteful policy,”  as has Globe columnist Scot Lehigh, who has made the Pacheco Law almost as frequent a target of his displeasure as teachers’ unions.  Lehigh has termed the law a:

misguided statute that effectively ended the state’s experiment with hiring private-sector firms to deliver public services.

Lehigh goes on to contend that:

With Pacheco on the books, it’s difficult even to explore the efficiencies that could come from contracting out, much less realize them.

The pro-privatization think tank, The Pioneer Institute, which Baker co-directed in the late 1980s, has termed the Pacheco Law “the most restrictive state anti-privatization legislation in the nation.”  A separate paper, written by the equally pro-privatization Reason Institute and published by the Pioneer Institute, claims that as a result of the Pacheco Law, Massachusetts is:

…the only state in the nation that has virtually outlawed the privatization of public services.

Strong words.  But like many of the negative claims about the Pacheco Law noted above, the Reason/Pioneer claim doesn’t appear to be backed up by convincing evidence.  For instance, in discussing the amount of privatization that Massachusetts has supposedly been “missing out on” due to the Pacheco Law, the Reason/Pioneer paper  cites a statistic from the Government Contracting Institute that the value of federal, state, and local contracts to private firms around the country increased by 65 percent between 1996 and 2002.  The paper, however, doesn’t provide any evidence that Massachusetts failed to keep up with that increase in contracting.

No doubt, the Pacheco Law has some provisions that can be argued are unfair to would-be contractors.  There may be good arguments for changing some of those provisions, such as one giving the auditor the power to reject a proposed contract he determines not to be “in the public interest,” without providing a definition or reason.  It might also be worth considering an appeal process from the auditor’s decisions.

At the same time, however, it is unclear that the Pacheco Law has really done much to block either privatization or the closures of state-run facilities in Massachusetts.  In fact, a case could be made that the Pacheco Law has been underutilized by those who might have used it to slow the rate of facility closures and privatization in the state.

Interestingly, the law was enacted in during a battle in the early 1990s over the then Weld administration’s plans to close nine state-run mental health, mental retardation, and public health institutions.  Yet, passage of the law didn’t stop the closures of any of those facilities, particularly the Dever Developmental Center, which was in Pacheco’s own district.  The planned closure of Dever had been the impetus for Pacheco’s proposed law.

As Daryl Cameron Every, an attorney who fought to preserve the Dever Center in the 1990s pointed out, the Weld administration avoided a Pacheco-Law review in that case after reaching an agreement with state employee unions to create a network of state-operated group homes to accomodate most of the Dever Center residents.  Every said she believes the state will eventually privatize those group homes.  As she noted, the Pacheco Law doesn’t obligate the state to continue running the residences.

Today, the Pacheco Law has similarly had no discernible impact on the Patrick administration’s plans to close an additional four state facilities for persons with developmental disabilities, including the Fernald Developmental Center.

There are many ways to get around the Pacheco Law and still effectively terminate or privatize state services.  James Durkin, a spokesman for AFSCME Local 93, said that the law won’t necessarily apply if a state facility, such as Fernald, is simply closed.  If the privatization process occurs over time, as is likely to be the case with the closure of Fernald and the state-operated residences following the closure of Dever, the Pacheco Law isn’t likley to be invoked, he said.

Durkin added that the Pacheco Law only applies to the privatization of existing state services.  When the Massachusetts College of Art recently built a new dormitory and hired private vendors to provide services there, the Pacheco Law didn’t apply, he said.

In addition, contracts under $500,000 in value are exempt from the Pacheco Law. That threshhold was raised from $200,000 to $500,000 last year.  Durkin said AFSCME considers the various ways around the Pacheco Law, including the $500,000 threshhold amount, to be “unfortunate loopholes.”  Apparently that threshhold isn’t high enough and those loopholes aren’t wide enough for the law’s critics.

Glen Brierre, a spokesman for State Auditor Joseph DeNucci’s Office, said the auditor has approved about 20 proposed contracts since the Pacheco Law went into effect.  The “vast majority” of proposals have been approved, he said.

By the way, it’s not as if the Pacheco Law came out of thin air.  The Pioneer/Reason paper acknowledges that the law was modeled after a federal rule for contracting out governmental functions (the Office of Management and Budget’s Circular A-76).  The Pioneer/Reason paper contends that the Pacheco Law made significant changes to the federal guidelines, although it doesn’t specify what those changes were.

The OMB Circular states that governmental “commercial activities (i.e. those activities eligible for privatization) should be subject to the forces of competition.”  Specifically, it says, that competition should determine whether “government personnel should perform a commercial activity.”  In other words, like the Pacheco Law, the OMB requires a cost analysis in which government gets to compete with the private sector for the business.

Suffice it to say, the competitive contracting-out process in OMB Circular A-76 is extremely complex (just take a few moments to scroll through the Circular in the link above to appreciate that complexity for yourself), and we’re not in a position to judge exactly how the Pacheco Law differs from the federal model.  But then again, we’d doubt that many of the critics of the Pacheco Law are either.

It seems to us that to the extent the Pacheco Law requires a thoughtful review of the costs and claims of privatization in Massachusetts, it should stay on the books.

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How government can regain the capacity to control and manage environmental disasters

Posted by David Kassel on June 11, 2010

On a recent segment of MSNBC’s “Morning Joe,” the folks around the table were discussing the federal government’s seeming inability to get BP to act with urgency and effectiveness in stopping the oil leaking into the Gulf of Mexico.

Much of the discussion, of course, concerned the damage to the environment that is being compounded daily by the spreading oil.  But there was also frustration expressed by just about everyone at the table at the government’s “loss of capacity” to do anything about it. 

It does seem that we used to be a “can do” nation that could win wars unambiguously, land men on the moon, and respond effectively to disasters.  But it seems we have lost much of our capacity in recent years, not only to accomplish great public undertakings, but even to manage the growing number of private sector actors that have moved in to fill the vacuum. 

Why is this?  Have we, in fact, become a “hollow state” in which public agencies have little ability left to do anything other than rubber stamp corporate activities, many of which seem irresponsible if not downright destructive?  From the reconstruction of Iraq to the Big Dig in Boston, we no longer seem to be able to control spiraling costs or ensure top quality in the results. 

In fact, the related managerial trends of privatization, decentralization, and deregulation have combined in the past couple of decades to reduce government’s capacity to act effectively in these instances.   The Government Accountability Office reported that while the amount of federal contracting rose by 11 percent between 1997 and 2001, the size of the federal workforce devoted to managing contracts decreased by 5 percent.   This phenomenon has certainly been true at the state and local levels as well. 

The late academic scholar Larry Terry pointed to a loss in “institutional memory” in government due to the departure of “institutional elders–those individuals who possess extensive knowledge, expertise, and valuable information about an organization’s history…”    Some of this governmental loss in capacity is the result of downsizing trends in government that took root in the Reagan years and continued during the Clinton years and during the presidencies of Bush 1 and 2.  The New Public Management, which was promoted by the Clinton administration, promoted “market driven management,” which advocated increased privatization of government services and the use of private sector practices and technologies within government.  

Meanwhile, countless politicians, from state legislators to presidents, have built their political careers on criticizing government as too big, bureaucratic, and ineffective.  The result, however, is that we now have a government in this country that may be a little less big, but still seems bureaucratic and even more ineffective. 

But that doesn’t mean we can’t undertake great projects anymore or that government is doomed to impotence in controlling  oil spills and other disasters.  Take the oil spill in the Gulf.  Government still has the capacity to act effectively in situations like that.  It simply has to act smarter. 

First, political leaders and public managers must resist the temptation to muddle through these crises with ad-hoc decisions that seem to change each day on the basis of news reports and polling.  The president needs to establish an environmental crisis team that can respond immediately to situations such as the oil spill, similar to the crisis team that advises him during national security emergencies.  

When an environmental crisis occurs, the president and his team must immediately develop a coherent plan for dealing with it.  That process must involve a careful analysis and definition of the problem the team is facing.  The president and all team members must constantly question their presumptions about the problem and its possible solutions.  From day one, such a team could have held a series of meetings in which they asked themselves: what methods of stopping the oil leak are likely to be the most successful and to stop it the fastest?  BP engineers and executives as well as outside oil industry and environmental experts should have been called in to the meetings. 

Many collateral issues should have been explored in the meetings as well, including the best options for cleaning up the already-spilled oil, the safety of the chemical dispersant being used by BP, and how the oil-capping and cleanup activities would be financed. 

The project plans that emerged from that process would have clear scopes of work for BP and others to accomplish as well as clear penalties for failure to meet the specifications.  Then, once the plans had been put into effect, the president and his crisis team would be well-positioned to monitor and assess the project activities in accordance with the plans. 

Both public and private-sector organizations have always suffered from a lack of systematic approaches to dealing with complex projects and sudden crises.  It’s all the more imperative that such approaches be developed and used by our current downsized public sector in our increasingly fragile world.

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Will government become part of the private sector?

Posted by David Kassel on August 28, 2008

Much of of the current debate over whether government should operate more like private business fails to take into account the growing reality that government is increasingly merging with private business.

Allan Burman at George Mason University maintains that 80 to 85 percent of the federal Energy Department’s workload is done by contract.  As Burman puts it:

Whether it’s cleaning up a nuclear waste site in Washington state or designing a new multi-million dollar scientific device at Oak Ridge, Tennessee, the prime responsibility for getting the job done rests with contractors.

A Government Accountability Office forum report in 2006 noted that the acquisition of goods and services from private contractors consumed over one-fourth of discretionary spending government-wide.  The amount of that federal acquisition spending increased from $235 billion in 2001 to $388 billion in 2005–a 65 percent hike. 

Writer Naomi Klein describes “contract cities” in the U.S., such as Sandy Springs, GA, which has 100,000 residents, and is run by CH2M Hill, an engineering and construction company that received large oversight contracts in Iraq.  Klein maintains that when Sandy Springs was incorporated in 2005, “only four people worked directly for the municipality–everyone else was a contractor.”

Authors such as Elaine Kamark, a former Clinton administration official,  hail “the end of government as we know it” and the New Public Management’s (NPM) call since the early 1990s for the transfer of once governmental functions to private parties and the market.  Others, such as the late Larry Terry, have issued warnings about the dangers of the emergence of the “hollow state.”

Larry Terry, drawing on the work of Milward, Provan, and Else, describes the “hollow state” as a “transfer of power and decentralization of services from the central governments to subnational governments and by extension to third parties.”  He describes the NPM as having introduced “liberation management,” which has called for increased deregulation, and “market-driven management,”  which has called for increased privatization.  Says Terry:

The ideas embodied in both liberaton management and market-driven management, if swallowed whole, may not serve democracy well…There is a great deal at stake, namely the stability of U.S. constitutional democracy.

There’s nothing new about contracting out government services.  Federal policy regarding outsourcing was formalized in 1966 in the then Bureau of the Budget’s Circular A-76.  Among other things, the Circular requires government to classify its work as either “inherently governmental,” which means it cannot be contracted out or as “commercial,” which means it can.

In the July 2008 issue of PA Times (the monthly newspaper of the American Society for Public Administration), Larkin Dudley and Michael DeLor maintain that the definition of “inherently governmental” remains a difficult question that has not been clarified much since 1966, either in revisions to the circular or the courts.

They note that the Circular states that tasks are inherently governmental if they bind the United States to take some action; determine economic, political, or territorial property by military or diplomatic action, judicial proceedings, or contract management, significantly affect the life, liberty, or property of private persons; or exert ultimate control over the disposition of United States property.

Dudley and DeLor maintain there is a need to think through what activities may significantly affect the life, liberty, or property of private persons.  They contend that government should not outsource when doing so would compromise the mission of an agency, when people are incarcerated, when armed law enforcement is done in public places, for military activities in active war zones, and when government requires taking away freedom or rights from citizens.

It’s not clear to me whether Dudley and DeLor are arguing against the private operation of prisons or even the privatizaton of prison-based services—something that has been done widely in the United States.  Also, do they oppose all use of security contractors in places like Iraq?

Federal regulations also have a lot to say out government outsourcing and when it is or is not appropriate.  Federal Acquisition Regulation subpart 7.5 states that functions considered to be “inherently governmental” include, among others, the command of military forces, the conduct of foreign relations, determining agency policy, determining federal program priorities for budget requests, determining what supplies or services are to be acquired by government, approving contractual documents defining requirements, and ordering changes in contract performance or quantities.

As Dudley and LeLor suggest, it is time for more comprehensive guidelines about the meaning of inherently governmental.  This discussion needs to take place before government slides entirely into the private sector.

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Private militias and their accountability

Posted by David Kassel on March 4, 2008

Michael Walzer, a contributing editor to The New Republic, writes in the current issue of the magazine about the use of private militias and mercenaries in Iraq and elsewhere, and concludes it’s “mostly a bad idea.”

Walzer points to Max Weber’s definition of a state as holding a monopoly on the legitimate use of physical force within a society or territory.  And he adds that:

It is a very dangerous business to loosen the state’s grip on the use of violence, to allow war to become anything other than a public responsibility.

But that is exactly what has happened in Iraq.  To be fair, the current Bush administration didn’t pioneer the use of privately run militias for security and other jobs that the administration wasn’t willing or able to order its own troops to do.  Walzer notes that during the wars over the former Yugoslavia, then President Clinton permitted a private U.S. firm to train Croat soldiers in fighting the Serbs.  But might it have been better, he asked, if Clinton had gone to Congress and laid out the argument to use American troops to help the Croats?  Using private soldiers “makes policy invisible,” he notes.

Well, maybe not so invisible when those private soldiers start killing civilians, as Blackwater USA guards did when they fired into a crowd last September in Baghdad.

As Walzer points out, soldiers get out of hand at times as well, sometimes for similar reasons, including a lack of adequate training, equipment, and support.  But that, he says, “is the result of political decisions, not market processes.  And, for such decisions, we know whom to hold accountable.”

And it’s not just politicians who are held accountable when soldiers get out of hand, it’s the soldiers themselves.  As Walzer notes, solders are trained to fight in accordance with a code of conduct enforced by military courts, which in turn are overseen by civilian courts.  By contrast, security companies in Iraq operate under a voluntary, and unenforceable code of conduct.  Moreover, in an administrative law imposed by Paul Bremmer in 2004, guards are immune from prosectuion in Iraqi courts.

It remains, unclear, Walzer says, whether contractors can be tried by military courts.  They can theoretically be brought back to the U.S. for trial in federal courts.  But while there are some 100,000 American contractors in Iraq, not one has been prosecuted for an act of violence.

Violence by private militias is only one of the accountability issues raised by the government’s increasing use of private contractors in Iraq.  The government is simply unable or unwilling to adequately monitor a wide range of activities of private contractors, from reconstruction efforts to interrogations of suspected insurgents.   The result is not only unplanned violence, but general mismanagement, shoddy construction, and poor delivery of services. 

But there’s no doubt as why the use of private contractors holds such appeal to so many administrators in government.  As Gilmour and Jensen have pointed out:

…if private actors are not subject to the rules set for government action, delegating authority to private parties may allow the government to do through them what it cannot do itself.

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Fernald and the folly of unchecked privatization

Posted by David Kassel on January 14, 2008

A bitter battle over privatization is being fought in federal court in Massachusetts.  It’s one that has garnered little substantive media coverage in the state, yet it promises to have lasting consequences for the care of some of the most vulnerable members of society and for the role of government itself in this state. 

The battle is over the fate of the Fernald Developmental Center in Waltham, Massachusetts, the nation’s oldest, state-run facility for persons with mental retardation.  The administration of Gov. Deval Patrick, which is seeking to carry out the former Romney administration’s plans to close Fernald and privatize its services, is appealing  U.S. District Court Judge Joseph Tauro’s ruling last year that Fernald must stay open to its current residents.  

By way of disclosure, I have been working as a consultant to The Fernald League for the Mentally Retarded, Inc., a nonprofit, family-run organization seeking to keep Fernald open.   However, I’ve written this and a previous entry, about how the Patrick administration has politicized Fernald cost-benefit numbers, on my own volition.

I think it’s important to know what’s at stake here and what the state is potentially giving up in closing an institution such as Fernald and very likely the five other remaining state facilities in Massachusetts for persons with mental retardation.  (Administration officials insist they have no plans right now to close any facility other than Fernald, but I think it’s unlikely they would be underaking the expense of this legal battle in the U.S. Court of Appeals if they didn’t have ambitions to close other state facilities as well.)

Here’s what the state and its citizens and taxpayers will be losing if the Patrick administration wins its appeal:

1.  They will lose a long-held state asset—190 acres of land and buildings—in exchange for one-time revenues from developers purchasing the property.  The Department of Mental Retardation has already signed 20-year agreements with a contractor to lease homes in the community for some of the transferred Fernald residents.  The state will not own those properties even though it will be paying up to $2 million per home over the 20-year period

I should note that the Fernald League does not oppose the sell-off and development of most of the Fernald Center campus, and has proposed a “postage-stamp” arrangement under which the current residents would remain in a smaller, designated section of the grounds.  The Patrick administration, however, has declined all offers to negotiate such an arrangement.

2.  They will lose a source of high-quality state-operated care for persons with mental retardation.  This care will ultimately be assumed by contractors, who are more interested in preserving their bottom lines.  This is evidenced by the fact that levels of staffing in community-based, privatized group homes are lower than in state facilities such as Fernald, and by and large community-based staff have little or no health care benefits.

It is this lower level of staffing and lower levels of pay and benefits that are driving the administration’s assertions that the state will save money in closing Fernald.  The problem is that facilities such as Fernald serve individuals with the most severe and profound levels of mental retardation and extensive medical needs in the state.  These people don’t represent the average population in the DMR system, who, by and large, have more mild to moderate levels of mental retardation.  And yet the administration insists, without any explanation, that when these fragile Fernald residents are transferred to the community, they will receive equal or better care there.

 3. They will lose the ability to oversee the care and services provided by the DMR.  In a brief filed in 2006 in the federal court case over Fernald, the Wrentham Association, a plaintiff in the case, noted that DMR’s oversight of the community system is inadequate and relies largely on consumer satisfaction surveys and reviews whose reports are not available until long after the data have been collected.

In addition to eroding the ability of the state to oversee care provided in thousands of community residences, the spread-out community system erodes families’ ability to organize and advocate effectively for their loved ones.  DMR officials have shown that they understand the power of this advocacy.  When families of DMR clients have gotten together to hold DMR to account for its treatment those clients, DMR officials have threatened to evict those clients from their residences and split the families apart.

In its notice of appeal last September in the Fernald case, the Patrick administration stated that the decision to close Fernald is:

…consistent with a national shift away from institutional care in favor of community living.  Decades of research indicate that community settings offer people with mental retardation the best care available and the highest quality of life. 

The first sentence of this statement is true, and the second is false.  It’s true that there has been a national shift away from institutional care in the past three decades.  In state after state, families of residents of state-fun facilities have been fighting uphill battles to save them.  What is false is that the privatized alternative to the facilities provides the best care available and the highest quality of life.

In Massachusetts, the 2006 legal brief filed by the Wrentham Association detailed a privatized system of community-based care in Massachusetts that is at the “breaking point.”  Levels of physical and sexual abuse, medication errors, and outright neglect were far higher in the privatized community system on a per-resident basis than in the state facility system, the brief stated.

It is patently false, therefore, to say that community settings provide the best care available or the highest quality of life.  If that was the case, families of residents in institutions would be clamoring to get those residents out of the facilities and into the community settings.  Instead, they’re fighting to keep them in.  This has forced the privatization proponents to adopt the condescending position that these families don’t know what’s best for their own loved ones.

In June 2007, a Boston Globe editorial, headlined “The Folly of Closing Fernald,” called on the Patrick administration to “stop sparring with a judge (Tauro) whose rulings are consistently in the best interest of the Fernald residents,” and craft “a solution that makes economic and therapeutic sense.”  The administration, however, has chosen not to follow either of these pieces of advice.

Simply because a practice or governmental policy has become a trend doesn’t make it inherently good or right.  As the Globe stated, “deinstitutionalization is not the right remedy for every man and woman with mental retardation, despite the assertions of advocates for group homes.”

In Latin America, country after country have been reversing the privatization trend in recent years, recognizing the economic demage that privatization and deregulation have inflicted on their economies since the 1970s.  Is there really agreement in this country that privatizaton and deinstitutionalization have been uniformly good things?


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Missing the Katrina feeding frenzy

Posted by David Kassel on January 10, 2008

Many causes of governmental failure in relation to Hurricane Katrina are now well known.  They include the fragmented authority and confusion over responsibility for maintenance of the levee system, the misguided encouragement of urban sprawl in the area, and bureaucratic ineptitude, which led to the failure to provide adequate food, water, and buses for days to homeless survivors.

These causes are examined in depth in a December 2007 special supplementary issue of Public Administration Review entitled “Administrative Failure in the Wake of Katrina.”   What may be missing from the discussion in this issue, though, is an examination of how the federal government simply conceded much of its authority in responding to Katrina to the private sector and stood by as a feeding frenzy of profit-making, fraud, and mismanagement occurred.

In her book, The Shock Doctrine, Naomi Klein paints a stark picture of the response to Katrina as one in which a “hollow government” cheered on corporate profiteering.  Katrina provides an eerie parallel to the situation Klein describes in Iraq.

Klein sees Katrina as a template for a future in which government retreats further and futher, letting private corporations assume virtually all its previous roles and functions, from providing security to delivering health care, to the actual day-to-day process of governing.  The services, however, will be available only to those who can afford them, she says.

Companies, many of which had gotten lucrative reconstruction contracts in Iraq, were given huge contracts in New Orleans, including Halliburton and Blackwater, which was hired to protect FEMA employees from looters.   Fluor, Shaw, Bechtel, and CH2M Hill were given $3.4 billion in no-bid contracts to provide mobile homes for the evacuees.  Meanwhile, thousands of city workers, including teachers and planners, were fired.

In the PAR special issue, Carole L. Jurkiewicz notes that the citizens most affected by the hurricane “have received but a trickle of the flood money that has poured into the state.”  Jurkiewicz, however, blames it in part on the ethical culture of Louisiana.  She states at the outset that Louisianans are, by and large, proud of the state’s reputation for colorful political corruption.

In the wake of Katrina, Jurkiewicz does state that the citizens faced “the vacuum of professionalism and leadership in state and local administrations,” as well as “a partisan and ill-functioning federal administration.”  But she places much of the blame on cultural conflicts between the lower, middle, and upper-income citizens within the state, which she says have played a role in the administrative failures.  Lower-income  individuals falsified documents to receive cash cards from FEMA and looted retail shops followng the storm, she says.  Middle-income individuals overbilled for services or billed for services that were never rendered.  Upper-income individuals used their network of associates to “arrange no-bid, multi-million dollar contracts between their companies and the government.”

What Jurkiewicz doesn’t seem to acknowledge, though, is that these multi-million dollar contracts didn’t apparently go primarily to companies in Louisiana, they went to Halliburton, CH2M Hill, Bechtel etc.  This was bigger than Louisiana and its dysfunctional ethical culture.  It was the dysfunctional ethical culture of Washington and Wall Street that was involved here.

In another article in the special PAR issue—“Where Federalism Didn’t Fail”—Martha Derthick maintains that that governmental reaction to Katrina presents “a complicated mixture of failure and success.”

Derthick contends that careful planning allowed the evacuation of more than one million people out of the population of 1.4 million in greater New Orleans in the two days before the hurricane struck.  This was indeed a success and was a result of prior cooperation between the governments of Louisiana and Mississippi.  She also credits the National Hurricane Center in Miami, a federal agency, which had urgently warned state and local officials well in advance of the danger.  And she credits the search and rescue operations of the U.S. Coast Guard and the Lousiana National Guard and Department of Wildlife and Fisheries for saving the large number of people who had not evacuated.  FEMA teams helped, through they responded late.

In contrast, officials at the top of the federal government were slow to comprehend that a catastrophe had struck New Orleans, Derthick says.  She paints a picture of ineffective bureaucracy, resulting in unacceptable delays and screwups in providing food and transportation to victims.  But she, too, does not focus on the hollowness of that bureaucracy.

Derthick points out that three major federal reports on Katrina—from the White House, the Senate, and the House of Representatives failed to confront the risks of urban sprawl in exposed locations.  The Bush administration report sought typically to enhance presidential authority and control over disasters and broadened the president’s power to use the National Guard.  The Senate approach took a more temperate approach.   But the authors of these reports, as well, apparently didn’t see what Klein saw—the ceding of governmental authority to the private sector.

In “Learning from the Katrina Crisis,”  Ali Farazmand seeks to provide a “global perspective” on the crisis and to provide recommendations “to cope with hyper-uncertainties and unknowns.”  One of his recommendations is the imposition of “surprise management,” which involves “sound leadership through a central command structure” and “advanced, nonlinear, and chaos management systems that can be applied beyond tomorrow.” 

Farazmand’s recommendations sound fine (although I’m not sure what nonlinear chaos management is all about); but it would seem no central command structure would be truly effective if it’s the case, as Klein persuasively argues, that FEMA in New Orleans was “a laboratory for the Bush administration’s vision of government run by corporations.”

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The cost of hollow government

Posted by David Kassel on January 2, 2008

The cost of the increasingly hollow, ideological governance within our public sector is starkly revealed in one of the more riveting political books of 2007, The Shock Doctrine, by Naomi Klein.

In fact, this book has explained to me why the Bush administration didn’t equip our troops with adequate armor in Iraq and why they weren’t, and still aren’t, interested in winning the war.  It appears the administration is not even really interested in reconstructing Iraq.  That’s because scores of current and former members of the administration and their friends in the corporate sphere are more interested in making a huge profit off the billions of taxpayer dollars intended to reconstruct the place.

What are the presidential candidates saying about this?  They’ve taken positions on withdrawing the troops from Iraq, but what about the matter of America’s role in plundering the country?

The book details how Halliburton has used $20 billion in public reconstruction funds to build “city-states” for the thousands of contractors that have overrun Iraq, yet little or no money has gone to the country’s factories.  The money has been turned over almost exclusively to American and other foreign contractors and accountants, most of them handed no-bid contracts, while Iraqis themselves have largely been excluded from all the fun.

Meanwhile, the administration never set up a workable system of public oversight of these contractors, who seem to be immune as well from both Iraqi and American laws in their dealings.  The result has been widespread fraud and mismangement.  As Klein puts it:

…the occupation of Iraq was, from the start, a radical experiment in hollow governance.

Klein contends that this situation, coupled with American decisions early on to stifle democratic elections in Iraq led to the horrific violence there, which was then met with American-imposed repression, ultimately symbolized by the spectacle of Abu Ghraib.

Klein makes a convincing case that all too many key current and former members of the U.S. government, such as Dick Cheney, Donald Rumsfeld, Henry Kissinger, Richard Perle, James Baker, George Shultz and others have personally profited either from the war in Iraq or from the Bush administration’s “War on Terror” in the wake of 9/11.  She notes:

In the Bush administration, the war profiteers aren’t just clamoring to get access to government, they are the government: there is no distinction between the two.

The book, subtitled “The Rise of Disaster Capitalism,” also describes a pattern of  corporate corruption in country after country in which the U.S. has intervened economically and sometimes militarily in the past four decades.  This pattern began in Chile and Argentina in the 1970s, and continued in Poland and Russia, just after the fall of Communism, in South Africa after Apartheid, in Thailand and other countries in Asia, and finally in Iraq.  It’s a pattern that appears to involve the imposition of Milton Friedman’s “Chicago School” economic doctrines in every case.

In none of these cases have these doctrines of mass privatization, deregulation of markets, and massive cuts in social services worked.  In every case, a small cadre of corporate elites has gotten rich, while the middle class has been pushed into poverty and despair.  Iraq has been the ultimate example of this.  Moreover, because these economic principles are so unpalatable to the local populations, Klein contends, the principles have had to be imposed in conjunction with violent shocks involving repression, violence, natural disasters, and, in many cases, torture.   

Klein opens with the example of Hurricane Katrina, a major shock, which was seen by many local politicians and corporate lobbyists as an opportunity to level public housing projects in New Orleans, lower taxes, deregulate the economy, and downsize the government.  She  details the situations in Chile, Argentina and other South American countries, beginning in the 1970s, in which Augusto Pinochet and other dictators imposed the shocks on their own, instituting enormous repression, killings, torture, and disappearances on their populations, with the sole aim, it turns out, of installing free-market economies in their countries.  Lurking behind the scenes in case after case has been the University of Chicago Economics Department and Friedman, its free-market guru, who advised and encouraged these dictators to transform their countries according to their free-market theories.  

Klein also drags Israel into this morass, but I think she goes off the track here.   She contends that Israel’s security wall has turned that country into a “fortified gated community” equivalent to the Green Zone in Iraq.  She makes no mention of the fact that the wall appears to have stopped the suicide bombings inside Israel.  She also contends that a lot of Israeli companies have profited from selling security-related technology around the world, but she makes no case that those companies are running the Israeli government the way Halliburton etc. appear to be running the U.S. government.  She makes no case, moreover, that Israel’s leaders are seeking to impose free-market principles on the Palestinians or anyone else for that matter, so this chapter really doesn’t seem to fit within this book.

On the whole, however, this is a book that should be read and discussed in both programs and courses on corporate social responsibility and public sector governance.  It should also be part of the curriculum in economics departments and should be a key focus of discussion in the presidential campaign as well.

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