Civil action commenced in the Bristol Division
of the Probate and Family Court Department on February 28, 1986.
A motion to terminate a consent decree,
filed on February 14, 2013, was heard by Katherine A. Field, J.
The Supreme Judicial Court granted an
application for direct appellate review.
Timothy J. Casey, Assistant Attorney
General (Christine Fimognari, Assistant Attorney General, also present) for the
defendants.
Max D. Stern (Joseph M. Cacace, Alexandra
H. Deal, & C. Michele Dorsey also present) for Leo Soucy & others.
Michael P. Flammia (Christian B.W.
Stephens, Matthew D. Rodgers, & Trevin C. Schmidt also present) for Judge
Rotenberg Educational Center, Inc.
Kathryn Rucker, Mona Igram, Steven J.
Schwartz, & Richard M. Glassman, for The Arc of Massachusetts & others,
amici curiae, submitted a brief.
Felicia H. Ellsworth & Charles C.
Kelsh, for American Academy of Pediatrics & others, amici curiae, submitted
a brief.
KAFKER, J.
The instant appeal concerns a long-standing controversy over the
treatment and welfare of a particularly vulnerable population living within our
Commonwealth. These individuals suffer
from severe developmental and intellectual disabilities that, left untreated,
cause them to engage in grievous self-harm, maiming, and other life-threatening
behaviors. They reside in small group
homes under the care of Judge Rotenberg Educational Center, Inc. (JRC), a
facility that employs the use of aversive interventions -- most notably, electric
skin shock -- as part of its treatment approach to severe behavioral
issues. JRC, which stands as the sole
facility in the country to use electric skin shock on the developmentally
disabled, currently operates under the protection of a thirty-six year old
consent decree. That decree was entered,
and has remained in place, after State agencies resorted to pretextual and bad
faith regulatory practices to disrupt JRC's operations in the 1980s and
1990s. The State agencies that remain
bound by the decree have since moved for its termination. That motion was denied by a judge in the
Probate and Family Court (Probate Court), and the matter now comes before us on
appeal.
For many mental health advocates, the
controversial interventions used by JRC sound reminiscent of the institutionalization
and abuse inflicted on the developmentally disabled in decades past. Yet the families of these clients claim that
JRC has been singularly effective in preventing their children from engaging in
severely self-injurious and destructive behaviors, such as gouging their own
eyes, puncturing their own bodily orifices, and violently attacking
others. These families characterize
JRC's methods as a treatment of last resort -- one sought after alternative
treatments either failed to protect their children from self-harm or left them
continually sedated and restrained. This
case thus involves a heart-wrenching issue:
continue to protect a controversial practice that has widely been
criticized, or pave the way for its prohibition at the risk of subjecting these
vulnerable patients to a life of sedation and restraint, or extreme
self-injury.
The propriety of this controversial
treatment does not reach us in a vacuum, however. The record before us contains extensive
findings of fact made by the judge below, based on a forty-four day evidentiary
hearing that closed in 2016, with 788 exhibits and nearly thirty
witnesses. Among those findings was the
judge's conclusion that the Commonwealth had yet again resorted to bad faith
regulation of JRC in 2010, and that, as of 2016, the medical community remained
divided as to whether JRC's treatment approach fell outside the professional
standard of care for the most severely disabled patients.
It is particularly troubling that the case
is before us on an evidentiary record that closed seven years ago, especially
given the fact-intensive nature of the issues at stake. Nonetheless, because the parties have urged
us to decide this appeal without remanding for additional findings, we assess
the parties' arguments on the record we have been given. That record compels us to conclude that the
defendants have failed to demonstrate that the judge's findings were clearly
erroneous, based on the evidence before her in 2016.
We stress, however, that our conclusion
does not foreclose the possibility that new developments will occur, or have
occurred, bearing on these factual issues.
Moreover, nothing in our decision or the consent decree prevents the
Department of Developmental Services (department) from exercising its existing
authority to contest the use of electric skin shock on individual JRC patients
at their yearly substituted judgment hearings in the Probate Court. Nor is the department precluded from
enforcing the consent decree's requirement that electric skin shock be used
only where it is the least intrusive, most appropriate treatment. The fact that the department has largely
chosen not to do so informs the context within which we rule on this issue. That being said, today we decide only the
narrow question of whether the judge below abused her discretion in concluding
that the department failed to establish that the consent decree should be
terminated based on the evidentiary record before the Probate Court in 2016. We conclude that she did not, and thus affirm
the denial of the defendants' motion.[4]
1.
Background. We summarize the
relevant factual findings of the judge below, supplemented where necessary by
undisputed evidence in the record. See
Connor v. Benedict, 481 Mass. 567, 568 (2019).
Because the record before the Probate Court closed in 2016, any
references to "current" practices, procedures, or statistics is only
current as to that date, unless otherwise noted.
a.
JRC and its treatment methods.
Since 1975, JRC[5] has operated a residential program in the
Commonwealth to provide treatment and educational services for individuals with
intellectual disabilities, developmental disabilities, and behavior
disorders. At present, JRC operates
forty-four houses in the Commonwealth, where clients live in a residential
setting. The judge below credited
testimony that patients are housed in a very humane environment and the staff
is well trained. As of March 2015, the
total number of clients enrolled at JRC was 244.
Many of the developmentally disabled
patients at JRC suffer from severely problematic behaviors, including
aggressive, destructive, and self-injurious behaviors. Indeed, a number of patients have come to JRC
after being expelled from other facilities unable to address the severity of
their behavioral issues. For some of
these patients, prior programs had resorted to restraint or heavy sedation in
an attempt to manage their harmful behaviors.
Because JRC generally does not turn patients away, for numerous
families, JRC was the only program willing to accept their son or daughter.
Unlike other facilities, JRC has a policy
of avoiding or minimizing the use of psychotropic medication to treat its
patients. Instead, JRC has long relied
upon applied behavior analysis (ABA) to treat patients. This involves conducting a "functional
behavior assessment," i.e., studying the relationship between problematic
behaviors and the conditions that precede them.
JRC then uses positive reinforcement, e.g., rewards, to encourage
desirable behaviors and negative consequences, or "aversives," to
discourage undesirable behaviors.
Typically, JRC relies in the first instance on positive reinforcement
procedures alone. However, if JRC's
positive programming fails to accomplish a patient's treatment goals, or if it
does not effectively treat the patient's problematic behavior, the family is
given the option of including aversives as part of their son or daughter's
treatment plan. At the evidentiary
hearing, several former JRC patients and parents credited JRC's aversive
treatments with significantly improving these patients' problematic behaviors.
At the time this litigation first began in
1986, JRC employed a variety of physical aversives in a hierarchical fashion
with increasing levels of intrusiveness.
See Natrona County Sch. Dist. No. 1 v. McKnight, 764 P.2d 1039, 1045 n.4
(Wyo. 1988) (listing hierarchy of aversives utilized at JRC in 1985). In the years after the consent decree was
entered, JRC shifted away from this existing hierarchy of aversives in favor of
using the "Graduated Electronic Decelerator" (GED), a device that
administers a two-second electric shock to the surface of the skin, usually on
the arm or the leg. At present, the GED
is the primary physical aversive used at JRC.
JRC utilizes two versions of the device:
the GED-3A and the GED-4. The
former delivers a current of 15.25 milliamps, and the latter delivers a current
of 41 milliamps.
JRC administers the GED to discourage
specific problematic behaviors. When a
JRC staff member observes one of these behaviors, a second staff member
verifies that the behavior is one for which use of the GED has been authorized
pursuant to a substituted judgment action, see note 6, infra, and the first
staff member then activates the GED.
Normal application of the device results in transient pain.
Before a patient may be treated with the
GED, a JRC clinician must first develop a treatment plan. Each plan is reviewed and approved by JRC
clinicians, as well as a human rights committee and a peer review
committee. After JRC develops the
treatment plan, it must petition the Probate Court for substituted judgment[6]
authorization to use the GED on that patient.
Once the Probate Court has approved the plan, JRC must petition for
reauthorization on an annual basis to continue treating the patient with the
GED. In the treatment plan provided to
the Probate Court, JRC is required to identify the behaviors that it intends to
target with the GED, and a JRC clinician must aver that the GED is the least
intrusive, most effective treatment for the patient in question. The department has the ability to oppose the
use of the GED on a particular patient at these yearly substituted judgment
proceedings, but, in practice, the department rarely does so. In one 2014 proceeding where the department
did choose to participate, the Probate Court ultimately sided with the
department and declined to authorize the use of the GED on that patient.
As of 2014, thirty percent of JRC's
patients had treatment plans that included the use of court-authorized
aversives. The remaining seventy percent
were treated using positive programming alone.
As of the close of evidence in 2016, few JRC patients treated with the
GED were minors. Counsel for the
defendants has since represented to this court that there are currently no
children receiving the GED as part of their treatment plan.
b.
History of current litigation.
The procedural history of this litigation began almost forty years ago,
and the matter last came before this court in 1997. See Judge Rotenberg Educ. Ctr., Inc. v.
Commissioner of the Dep't of Mental Retardation (No. 1), 424 Mass. 430 (JRC I),
S.C., 424 Mass. 471, 424 Mass. 473, and 424 Mass. 476 (1997). We need not repeat the entire history of this
case, much of which is covered in our prior decision. See id. at 433-442. In short, this litigation began after the
Office for Children (OFC) issued a set of emergency orders in 1985 requiring
JRC to immediately cease the use of physical aversive treatments and to halt
the intake of new patients.[7] A judge
in the Probate Court would later find that OFC had issued these orders
"based upon no medical foundation," and that OFC attempted to hide
this fact by retroactively altering a report that had been "laudatory to
[JRC] in all substantial respects."
In response to the emergency orders, JRC
and a class consisting of all JRC patients and their parents and guardians
filed suit, alleging various constitutional and civil rights violations. Thereafter, a judge in the Probate Court
entered a preliminary injunction enjoining OFC from enforcing its orders and
found that OFC had engaged in bad faith regulation of JRC. The parties subsequently reached a settlement
agreement, and on January 7, 1987, the Probate Court approved and incorporated
the agreement as an order of the Probate Court (consent decree). As part of the settlement agreement,
licensing responsibility for JRC was transferred from OFC to the Department of
Mental Health; later, that responsibility was transferred to the Department of
Developmental Services.[8]
The consent decree contained a number of
provisions, which are discussed at length in JRC I, 424 Mass. at 433 n.5,
443-445, 448, and included a requirement that both parties act in good
faith. Another provision required JRC to
obtain authorization from the Probate Court, by way of substituted judgment
proceedings, before it could employ physical aversives in the individual
treatment plan of a client unable to give consent. This was the only provision that was
explicitly designed to survive the termination of the consent decree. The decree called for compliance reviews to
occur at six-month intervals, with the decree to terminate automatically after
the second such review "unless the [Probate] Court, for good cause shown
related to the terms or substance of [the settlement] agreement, orders
otherwise." The Probate Court
subsequently issued an order on July 7, 1988, extending the settlement
agreement indefinitely. No party
objected to this extension.
Shortly after the consent decree was
entered in 1987, regulations were promulgated to govern the appropriate use of
physical aversives. The regulations
classified aversive interventions into one of three "levels,"
depending on severity. See 104 Code
Mass. Regs. § 20.15(3) (1987).
Level three was comprised of the most severe aversive treatments,
including any intervention that "involve[d] the contingent application of
physical contact aversive stimuli" or "pose[d] a significant risk of
physical or psychological harm to the individual." See 104 Code Mass. Regs.
§ 20.15(3)(d). Any program seeking
to use level three aversives was required to apply for a special certification
from the department.[9] See 104 Code
Mass. Regs. § 20.15(4)(f) (1987).
After conducting a review and inspection of the program, the department
would grant, grant with conditions, or deny the program a level three
certification for a period not to exceed two years. See 104 Code Mass. Regs.
§ 20.15(4)(f)(7),(9).
The regulations further specified that a
program would only be eligible to receive a certification for the use of level
three aversives if, "prior to the effective date of this regulation,
. . . the program had been using one or more level III interventions
pursuant to a Behavior Modification plan for one or more clients of the
program." See 104 Code Mass. Regs.
§ 20.15(4)(f)(11). Additionally,
and in accord with the consent decree, level three interventions could not be
used on a patient unable to provide consent, absent authorization from the
Probate Court, obtained by way of a substituted judgment proceeding. See 104 Code Mass. Regs. § 20.15(4)(e)
(1987). Moreover, these interventions
could only be used "to address extraordinarily difficult or dangerous
behavioral problems that significantly interfere with appropriate behavior and
or the learning of appropriate and useful skills and that have seriously harmed
or are likely to seriously harm the individual or others." See 104 Code Mass. Regs.
§ 20.15(4)(b)(5) (1987). JRC is the
only program in the Commonwealth certified to use level three aversives.[10]
In 1993, six years after the consent
decree was entered, the department launched a campaign to "disrupt the operations
of JRC by every conceivable means," with the intent of putting JRC out of
business. See JRC I, 424 Mass. at
454. This included "interfering
with JRC's relationships with funding agencies and JRC's fiscal
operations," as well as imposing "a severe and essentially constant
burden on the JRC staff by having to respond to an unrelenting stream of bad
faith regulatory demands" made without justification. Id. at 456-457. At one point, the department ordered JRC to
discontinue level three aversives for six patients, and later, it decertified
JRC as a provider of level three aversives altogether. The department's actions led JRC to file a
complaint alleging that the department was in contempt of the consent decree.
After a thirteen-day trial, a judge in the
Probate Court found that the department had engaged in bad faith regulation of
JRC, held the department in contempt of the consent decree, and placed it in
receivership to oversee and manage its interactions with JRC. This court affirmed the finding of contempt
on appeal, but narrowed the scope of the receivership. See id. at 463, 466-467. In 2003, the parties agreed to a winding down
of the receivership. By order of the
Probate Court, the receivership came to an end in 2006, thereby restoring the
department's regulatory oversight of JRC.
The order did not, however, terminate the consent decree.
c.
Department's regulatory conduct postreceivership. In August 2007, a former JRC resident called
the facility, impersonated a staff member over the telephone, and ordered JRC
employees to administer dozens of electric shocks to two patients in the middle
of the night. The caller also ordered
the employees to place a third patient on a four-point restraint board, despite
the fact that this was not authorized by the patient's treatment plan.
In the wake of the incident, JRC was
investigated by the department, along with a number of other entities,
including the Department of Social Services, the Department of Early Education
and Care, the Disabled Persons Protection Commission, and an independent
monitor. These investigations identified
a number of issues that contributed to this horrible incident, and the
department issued an action plan to JRC in early 2008 requiring the facility
to, inter alia, ensure that staff personally witness the targeted behavior
before using the GED, and minimize the time between observing the behavior and
administering the GED.
In January 2008, the Secretary of the
Executive Office of Health and Human Services (EOHHS), JudyAnn Bigby, sent a
memorandum to Governor Deval Patrick with recommendations for ways in which the
administration could "change the State's policy toward JRC without running
afoul of the [consent decree]."
Bigby made clear that she was "personally outraged by the continued
practice of electric skin shock therapy" and believed it to be outside the
current standard of care. She tasked
EOHHS Assistant Secretary Jean McGuire with forming and leading a clinical
advisory group on the use of aversives.
The initiative resulted in a memorandum authored by one of its members,
Dr. Charles Hamad (Hamad memo or memo), a psychologist at University of
Massachusetts Medical School (UMass Medical).
Upon receiving Hamad's draft of the memo,
McGuire suggested a number of edits, including the minimization of one expert's
opinion that she felt "looked like a rationale for keeping one place [that
uses electric skin shock] open in the country (which would be the one we
already have)." Hamad approved McGuire's
edits, which included a new sentence stating, "In brief, our conclusion is
that neither the professional literature nor the practice arena supports the
use of aversive contingent interventions for behavior management of people with
intellectual or other disabilities that may involve serious behavioral
problems." The final version of the
Hamad memo was attached to a subsequent policy review memorandum that McGuire
drafted and sent to Bigby in December 2008, which listed various political and
regulatory options for changing the administration's policy toward the use of
electric skin shock.
One year later, Bigby sent a memorandum to
the Governor with an update on the status of JRC since the August 2007
incident. She noted that there had been "considerable
improvement in Executive agency collaboration and oversight of JRC, which in
turn has led to noteworthy progress in JRC's performance." She also stated that the department's level
three "certification team has recently completed a monitoring review and
found JRC to be in substantial compliance with previously imposed
conditions." Although Bigby
reiterated her belief that the use of aversives "does not reflect the
community standard of care or best practices," she concluded that,
"at least for now," the administration should "continue the
current close monitoring and regulation of JRC and . . . not pursue
any other options at this time."
In May 2010, the Governor's chief legal
counsel met with representatives of advocacy groups opposed to aversive
treatments. McGuire subsequently
informed the department of the issues discussed at the meeting, including the
advocates' recommendation that the department "make every use of the
upcoming certification to assure that we are tough on / responsive to those
areas where he [sic] continues to be non-compliant or has slipped."
The following month, the department's 2010
certification team, headed by Dr. Philip Levendusky, completed its report on
JRC's most recent application for level three certification. The team concluded that JRC was in
"substantial compliance" with prior conditions imposed by the
department and recommended that JRC be given a one-year recertification to use
level three aversives with certain conditions of compliance. However, in a subsequent series of
communications between Levendusky, the department's general counsel, and the
department's commissioner, the 2010 report was further revised without
consulting the remaining team members.
In the course of these revisions, the department's general counsel
removed the "substantial compliance" language from the report as well
as the recommendation that JRC be issued a one-year certification. The final, revised version of the report
instead extended JRC's existing certification by fourteen working days. Within that time, JRC was required to submit
a corrective action plan for obtaining compliance with all of the report's
conditions, and to submit additional progress reports at forty-five-day
intervals.
Following the issuance of this report, and
in the course of complying with the deadlines contained therein, JRC exchanged
a number of reports and correspondences with the department in which JRC
challenged the department's ability to impose certain conditions, and the department
rejected various of JRC's assertions of compliance. Eventually, in the summer of 2011, JRC and
the department agreed to mediation before the former receiver. The parties ultimately reached an agreement
in July 2012 resolving their dispute.
While the mediation was still ongoing, the
department amended its behavior modification regulations to prohibit the use of
level three aversives, except for "individuals who, as of September 1,
2011, [had] an existing court-approved treatment plan" authorizing their
use. See 115 Code Mass. Regs.
§ 5.14(4)(b)(4) (2011). In effect,
these regulations imposed a prospective ban on the use of level three aversives
for new JRC patients. After the
regulations went into effect, the department convened a group of experts to
serve on an advisory subcommittee charged with promulgating new guidelines for
the Statewide implementation of the department's favored treatment approach,
Positive Behavior Supports (PBS).[11] In
advance of the subcommittee's discussions of the ABA literature concerning the
efficacy and acceptability of using specific procedures to decelerate
problematic behaviors, a representative of the department informed the
subcommittee co-chair that "it won't matter whats [sic] in the literature
if [the commissioner] does not like it."
Some members of the subcommittee nonetheless went on to voice support
for the use of level three aversives in certain limited circumstances, and the
group expressed discomfort with draft guidelines that would ban specific interventions. The department subsequently instructed the
subcommittee not to address the issue of level three aversives as part of their
work.[12]
d.
Procedural history leading to instant appeal. In 2013, while the advisory subcommittee's
discussions remained ongoing, the defendants filed a motion in the Probate
Court to terminate[13] the consent decree, pursuant to Rule 60 of the Rules of
the Probate Court (2013) and Mass. R. Civ. P. 60 (b) (5), 365 Mass. 828
(1974). The department argued that
termination of the decree was warranted because the department had long since
abandoned its history of bad faith regulation, and because the primary physical
aversive used by the facility, electric skin shock, was outside the
professional standard of care.
A judge in the Probate Court held an
evidentiary hearing on the motion, which took place over the course of
forty-four days between October 2015 and October 2016. On June 20, 2018, the judge issued a written
memorandum of decision denying the motion.
The judge found that the department had engaged in bad faith regulation
of JRC in 2010, just as it had in prior decades. On this basis, the judge concluded that, as
of 2018, the consent decree remained necessary to protect JRC from bad faith
conduct such as had occurred eight years prior.
The judge's 2018 decision also concluded that the department had failed
to demonstrate a significant change in circumstances that would warrant
termination of the consent decree. In
reaching this conclusion, the judge found that the department had failed to
show that, as of the close of evidence in 2016, there was a professional
consensus that level three aversives were outside the standard of care. The defendants timely filed a notice of
appeal, and the case was entered in the Appeals Court in August 2021.[14] Thereafter, this court granted the parties'
joint application for direct appellate review.[15]
2.
Standard of review. Rule 60
(b) (5) permits the court to grant relief from a judgment with prospective
effect where "it is no longer equitable" for the judgment to remain
in place. This requires the moving party
to demonstrate a significant change in circumstances since the entry of the
judgment that would warrant its modification or termination. See MacDonald v. Caruso, 467 Mass. 382, 388
(2014), and sources cited. This standard
is a flexible one, and its application depends upon the individual facts of the
case and the nature of the judgment at issue.
See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 380-381
(1992). See also Alexis Lichine &
Cie. v. Sacha A. Lichine Estate Selections, Ltd, 45 F.3d 582, 586 (1st Cir.
1995). Thus, consent decrees that
implicate "the supervision of changing conduct or conditions," which
"are thus provisional and tentative," are more likely to warrant
modification than consent decrees that "give protection to rights fully
accrued upon facts so nearly permanent as to be substantially impervious to
change." Rufo, supra at 379, quoting
from Justice Cardozo's often-cited articulation of the standard in United
States v. Swift & Co., 286 U.S. 106, 114-115 (1932).
The decision whether to grant relief from
judgment under rule 60 (b) rests within the sound discretion of the trial
judge. See Atlanticare Med. Ctr. v.
Division of Med. Assistance, 485 Mass. 233, 247 (2020) (Atlanticare). "Accordingly, the denial of a motion
under Rule 60 (b) will be set aside only on a clear showing of an abuse of
discretion" (quotation and citation omitted). Id. In
effect, this means that the decision will be affirmed unless the judge below
"made a clear error of judgment in weighing the factors relevant to the
decision . . . such that the decision falls outside the range of reasonable
alternatives" (citation omitted).
Dacey v. Burgess, 491 Mass. 311, 317 (2023). Here, the department's argument that the
judge abused her discretion is focused primarily upon contesting two factual
findings derived from the evidentiary record before the Probate Court in 2016: (1) the department's continued bad faith
regulatory conduct toward JRC; and (2) the absence of a professional consensus
whether level three aversives fall outside the accepted standard of care.
"To prevail on appeal on the basis of
an assault on a judge's factual findings is no easy matter, for we accept the
judge's findings of fact as true unless they are 'clearly erroneous'"
(citation omitted). Millennium Equity
Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636 (2010). Under this "clearly erroneous"
standard, "the judge's findings come here well armed with the buckler and
shield" (alteration, quotation, and citation omitted). JRC I, 424 Mass. at 452. That is, any finding based partly or wholly
on oral testimony will be upheld, unless there is no evidence to support it or
the reviewing court "is left with the definite and firm conviction that a
mistake has been committed" (citation omitted). Kendall v. Selvaggio, 413 Mass. 619, 620-621
(1992). See Demoulas v. Demoulas Super
Mkts., Inc., 424 Mass. 501, 510 (1997) ("So long as the judge's account is
plausible in light of the entire record, an appellate court should decline to
reverse it"). It is not enough that
other evidence exists to support a different finding, or even that this court
might have weighed the evidence differently in the first instance. See Brandao v. DoCanto, 80 Mass. App. Ct.
151, 154 (2011).
3.
Timeliness of department's motion.
JRC argues, as a threshold matter, that we need not reach the merits of
this appeal because the defendants' motion to terminate the consent decree was
untimely. Although the judge below did
not deny the motion on this basis, she observed, in accord with the plaintiffs'
argument, that the motion had been filed "long after the existence of both
reasons that Defendants proffer" as necessitating termination of the
consent decree.
Motions under rule 60 (b) (5) must be
filed "within a reasonable time," determined in light of all the
circumstances of the case. Atlanticare,
485 Mass. at 247-248, quoting Mass. R. Civ. P. 60 (b). In making this determination, "a judge
may consider the reasons for delay; the ability of the movant to learn of the
grounds earlier; prejudice to the parties, if any; and the important interest
of finality" (citation omitted).
Atlanticare, supra at 248. Where,
as here, the judgment at issue binds public officials, the court also considers
the governmental and public interests at stake.
See id. See also Shakman v.
Chicago, 426 F.3d 925, 934 (7th Cir. 2005) (under Federal analog, "any
consideration of a 'reasonable time' for filing a [Fed. R. Civ. P.] 60(b)
motion with respect to the . . . Consent Decree must take into
account the nature of that litigation as well as the resulting prejudice, if
any, to the present elected officials and the public they represent"). At bottom, however, "[t]here is no set
formula" for determining reasonableness in this context. Atlanticare, supra. Compare id. at 247-249 (seven-year delay did
not render motion untimely in "highly unusual circumstances" of case,
including conflicting decisions between United States Court of Appeals for
First Circuit and this court that would otherwise "lead to confusion and
administrative deadlock"), with Owens v. Mukendi, 448 Mass. 66, 76-77
(2006) (listing cases where delays of two or three years rendered motion
untimely).
Applying these principles, we find that
the department's motion to terminate the decree was timely. The governmental interests are significant,
as denial on the grounds of untimeliness "would effectively 'bind all
future [regulatory officials]' . . . to the decree's
proscriptions," solely because their predecessors failed to bring the
motion at the earliest available opportunity.
Doe v. Briley, 562 F.3d 777, 781 (6th Cir. 2009), quoting Rufo, 502 U.S.
at 392. Additionally, the prejudice to
the plaintiffs is comparatively limited.
Indeed, any delay inures to the advantage of JRC. As long as the decree remains undisturbed,
JRC continues to benefit from the decree's limitation on the regulatory
authority that the department may exercise over the facility. Cf. Doe, supra (rejecting argument that
motion to terminate decades-old consent decree was untimely where, inter alia,
"the only apparent consequence of the delay, so far as [the nonmovant was]
concerned, [was] that the decree remained in place for some [thirty] years
longer than it probably should have").
Further, while we recognize that some of
the grounds for relief raised in the motion date back to the 1990s, the
department's primary arguments -- the department's record of good faith
compliance and a new medical consensus -- concern gradual developments. Moreover, given that the department sought to
argue that it had a long-standing record of acting in good faith, any delay in
raising the argument was a reasonable response to the decree itself; the delay
allowed the department time to demonstrate that it had learned from its
mistakes and had made the necessary institutional reforms. Cf. Associated Bldrs. & Contrs. v.
Michigan Dep't of Labor & Economic Growth, 543 F.3d 275, 279 (6th Cir.
2008), cert. denied, 556 U.S. 1127 (2009) ("An unduly strict reading of
the reasonable-time requirement, moreover, would tend to force premature [Fed.
R. Civ. P.] 60(b)(5) motions due to a State's fear of losing forever the opportunity
to correct an injunction or consent decree"). Accordingly, we turn to the merits of the
defendants' motion.
4.
Satisfaction of purpose underlying consent decree. Changed circumstances exist to warrant
termination of a consent decree, as opposed to its mere modification, where the
moving party demonstrates that the purpose of the decree has been
achieved. See 12 Moore's Federal
Practice § 60.47[2][c], at 60-178 & n.22 (3d ed. 2023). Although we have not provided specific
guidance on how to determine whether the purpose of a consent decree binding
public officials has been satisfied, Federal courts have looked to whether the
State has demonstrated that it is currently in "substantial, good-faith
compliance" with the fundamental purpose of the consent decree and
"unlikely . . . [to] return to its former ways." Peery v. Miami, 977 F.3d 1061, 1075 (11th
Cir. 2020), quoting Board of Educ. of Okla. City Pub. Sch. v. Dowell, 498 U.S.
237, 247 (1991). See Shakman v.
Pritzker, 43 F.4th 723, 728 (7th Cir. 2022) ("A party claiming to have
satisfied the terms of a consent decree must show that it has achieved the
objectives of that decree . . . and implemented a durable
remedy"). To assess whether
termination is warranted on that basis, we look first to the underlying purpose
of the decree.
a.
Purpose of consent decree. When
this case was last before this court on appeal, we explained the context and
over-all function of the consent decree as follows:
"The action
that resulted in the settlement agreement was brought because the parents and
guardians of JRC patients alleged that OFC was denying individual patients
their constitutional rights to certain treatments and was not regulating JRC in
good faith. The settlement agreement
sought to remedy this situation while allowing the department to continue to
fulfil its statutory duties to regulate mental health facilities."
JRC I, 424 Mass.
at 450. In describing the decree, we did
not go so far as to state that its purpose was to guarantee the right of access
to aversives, as the plaintiffs' claims to that effect were never actually
adjudicated and determined by the court.
That being said, the terms of the consent decree, along with the
underlying proceedings, do reveal two main purposes.
First, the consent decree was intended to
ensure that the department's predecessor in interest, OFC (and later, the
department itself), would regulate JRC in good faith and avoid engaging in
unauthorized, "unilateral interference" with individual treatment
plans. Id. at 445-447. Second, the consent decree was intended to
permit JRC to continue using aversives on individual patients, but only subject
to judicial supervision, by way of substituted judgment proceedings. See id. at 444. The decree contemplated that the department
would be allowed to participate in these proceedings, and that JRC would only
receive authorization where the proposed treatment was the least intrusive and
most appropriate to the client's needs.
See id. at 444 n.15. The consent
decree otherwise preserved the department's regulatory authority.[16] See id. at 445 ("Indeed, there is no
provision in the agreement that provides the department gave up any regulatory
authority"). Whether these purposes
have been fulfilled remains hotly disputed.
We address each one in turn.[17]
b.
Findings of bad faith regulation.
Here, the judge below found that the purpose of the decree had not been
fulfilled because the department engaged in bad faith regulation in 2010.[18] In support of this finding, the judge relied
upon three subsidiary findings: (1) the
alterations made by McGuire to the 2008 Hamad memo concerning the use of
aversives; (2) the alterations made by the department's commissioner and general
counsel to the 2010 certification report; and (3) the department's decision to
accept certain conditions proposed by the 2010 certification team concerning
the acceptable use of the GED that the judge concluded were
"impermissibl[e] . . . treatment decisions."
On appeal, the department asserts that the
Hamad memo did not affect the department's regulation of JRC because the
department was not involved in the creation of the memo and did not rely on it
in any way. The department further argues
that the changes made to the 2010 certification report were largely
nonsubstantive, and that the alterations made were "reasonable exercises
of the [c]ommissioner's ultimate authority to approve, approve with conditions,
or disapprove a Level III program," citing 115 Code. Mass. Regs.
§ 5.14(4)(f)(7) (2011). Finally,
the department claims that the conditions in the 2010 certification report
concerning the acceptable use of the GED were properly within the purview of
the department's regulatory authority.
We conclude that the department's alterations to the 2010 certification
report, particularly the removal of the team's substantial compliance finding
and the dramatic reduction in certification length, support the judge's finding
of bad faith. This finding of bad faith
is further supported by the department's unilateral decision, without first
assessing the scientific evidence, to impose a regulatory change that would
prohibit JRC from using level three aversives on new patients.
"Bad faith is a 'general and somewhat
indefinite term' that goes beyond 'bad judgment' or 'negligence,' suggesting 'a
dishonest purpose or some moral obliquity,' a 'conscious doing of wrong,' or a
'breach of a known duty through some motive of interest or ill will'"
(citation omitted). Buffalo-Water 1, LLC
v. Fidelity Real Estate Co., 481 Mass. 13, 25-26 (2018). See JRC I, 424 Mass. at 454. In the context of State action, this includes
the use of an otherwise lawful power for an improper purpose. See Pheasant Ridge Assocs. Ltd. Partnership
v. Burlington, 399 Mass. 771, 776 (1987).
In effect, bad faith requires an inquiry into the subjective intent
behind a party's actions, in addition to the actions themselves. See Bank of Am., N.A. v. Prestige Imports,
Inc., 75 Mass. App. Ct. 741, 754-755 (2009), and cases cited (discussing
"foundational definition" of bad faith, which involves
"subjective focus" on "knowing and conscious wrongdoing").
i.
Hamad memo. The judge below found
that the Hamad memo, in its final form, "was shaped significantly by
[EOHHS] Assistant Secretary McGuire herself and did not represent an
independent, objective review." The
judge then cited the Hamad memo in her discussion of bad faith, describing the
document as the primary source for a memorandum from McGuire that was
"intended to create a justification for [the department] to pursue a path
that would eventually end with the elimination of contingent aversive treatment
at JRC." Although we do not
discount the Hamad memo, we do not consider it as significant as the judge for
the reasons discussed infra. It does,
however, provide further, albeit limited, support for the more compelling
evidence of bad faith relating to the department's manipulation of the 2010
certification report.
We recognize, as did the judge below, that
McGuire made numerous alterations in the Hamad memo. This included downplaying one expert's
opinion that "contingent electric shock might conceivably be needed . . .
for a very, very small number of exceptional cases where the individual's
behavior was so extreme as to be life threatening" and adding a statement
that "neither the professional literature nor the practice arena supports
the use of aversive contingent interventions for behavior management of people
with intellectual or other disabilities that may involve serious behavioral
problems." However, McGuire's
revisions are largely in accord with the thrust of Hamad's original draft. The original memo contained a list of policy
recommendations for consideration by EOHHS, including a recommendation to file
legislation banning aversives, which the original memo described as
"reflect[ing] a consensus view reached after completion of various review
activities conducted under your direction over that [sic] last [six]
months." Moreover, both versions of
the memo effectively contain the same conclusion that "alternatives to
contingent aversive techniques are not only the preferred methods to treat
extreme behavior disorders but have clearly become the practice standard in the
field of developmental disabilities."
It is nonetheless apparent from the record
that the Hamad memo did not provide an independent, objective review of
aversives. Notably, Hamad did not seek
to interview either of the independent psychologists who evaluate and prepare
reports on the patients for whom JRC seeks use of the GED. Nor did Hamad follow up on information he
received about clinicians at Johns Hopkins University and the University of
Florida, as well as psychologists in Boston, who supported considering
aversives where alternative treatments had failed. These shortcomings support the judge's
finding that the Hamad memo did not constitute an independent, objective review
of the standard of care.
However, as the department emphasizes, the
record does not contain evidence to support the finding that the Hamad memo
played a role in the department's subsequent regulatory actions toward
JRC. Although the advisory group in
which Hamad participated included several department clinicians, it does not
appear that department officials were involved in the drafting of the Hamad
memo, let alone McGuire's subsequent revisions.
Nor was any evidence presented indicating that the department was
influenced by, or even aware of, the contents of the Hamad memo at the time of
the 2010 certification process. That
said, the memo's origin, revisions, and methodology suggest a result-oriented
approach that lends some contextual support for the more significant basis for
the judge's finding of bad faith: the
department's revisions to the 2010 certification team report.
ii.
Revisions to 2010 certification team report. Firmer support for the judge's finding of bad
faith can be found in the revisions to the 2010 certification team report. The judge found that "many parts of the
final report . . . were entirely rewritten" by the department's general
counsel and the commissioner, including "significant substantive
changes" made without the approval or knowledge of team members other than
Levendusky. The judge further concluded
that even though Levendusky approved the changes, he was not the "driving
force" behind them, and that the involvement and influence of the
commissioner was akin to the bad faith regulation of the 1980s and 1990s.
Although we agree with the judge's over-all
conclusion that these changes support a finding of bad faith, we do not agree
that "many" parts of the report were "entirely rewritten."[19] The important substantive changes to the
report, which totaled more than thirty pages, consisted of (1) the deletion of
the "substantial compliance" language and the team's recommendation
for a one-year recertification; (2) the revised recommendation to extend JRC's
existing certification by only fourteen days; and (3) the addition of
burdensome documentation requirements, with short turn-around times, contained
within the summary of conditions.[20]
It is readily apparent that these three
changes were both significant and improper.
The impetus for removing the "substantial compliance" language
and the one-year certification recommendation both originated from the
commissioner and her general counsel, not Levendusky. While Levendusky was the first to suggest
adding deadlines, he was not considering changing the one-year certification
recommendation at the time the report was drafted, and he did, in fact, find
JRC to be in substantial compliance with prior certification conditions. Further, the removal of the "substantial
compliance" language was far from mere semantics. The commissioner admitted at the hearing that
under the department's own policies, a finding of substantial compliance would
have resulted in a one-year certification recommendation, and thus, removal of
that language was necessary to justify the department's decision to grant a
shorter certification length.
Accordingly, the commissioner's decision to extend JRC's existing
certification by only fourteen days was improper under the department's own
policies, given the 2010 certification team's actual finding of substantial
compliance. And by limiting JRC's
certification extension to only fourteen days, the department put JRC under
significant undue and unjustified pressure, placing all of its patients'
aversive treatment plans in jeopardy.
Further compounding this pressure was the additional requirement that
JRC provide substantial documentation reflecting compliance within relatively
tight deadlines.
Considering these improper revisions
within their surrounding context, the judge's finding of bad faith in 2010 was
not clearly erroneous. Prior to the
events in question, Bigby had sent a memorandum to the Governor indicating that
the certification team had "recently completed a monitoring review and
found JRC to be in substantial compliance with previously imposed
conditions," noting that "JRC staff [had] been very cooperative and
improvement in the program [was] evident" and that "[b]y all
accounts, the situation at JRC [was] as good as it [had] ever been." Things appear to have changed when, four
months later, the Governor's chief legal counsel met with disability advocates
who recommended "mak[ing] every use of the upcoming certification to
assure that [the administration is] tough on / responsive to those areas where
[JRC] continues to be non-compliant or has slipped." McGuire relayed this message to the
department's commissioner and general counsel, indicating that the Governor's
chief legal counsel would expect "an update on this certification process,
once the team's work is done but before we issue the decision." McGuire would later remark in an e-mail
message that she also told the commissioner that McGuire "did not think
[the administration] would support another six month certification." And when the department finally sent the revised
certification report to EOHHS, the department's general counsel made a point of
highlighting to McGuire that, with the limited fourteen-day extension, JRC's
certification "could be pulled at day [fourteen] or day [forty-five] if
[JRC's] response isn't sufficient."
The department's general counsel did so despite acknowledging that, for
some of the report's findings of noncompliance, "these are really
professional judgment issues."
On the whole, this evidence supports the
judge's inference that the removal of the substantial compliance language, the
dramatic reduction in certification length from one year to fourteen days, and
the imposition of burdensome and time-sensitive follow-up requirements did not
amount to a good faith assessment of JRC's regulatory compliance, but an
attempt to appease advocates opposed to JRC and maximize the administration's
ability to justify a revocation of JRC's certification. See Lynch v. Crawford, 483 Mass. 631, 644
(2019), quoting Commonwealth v. Casale, 381 Mass. 167, 173 (1980) ("intent
is a matter of fact, which is often not susceptible of proof by direct
evidence, so resort is frequently made to proof by inference from all the facts
and circumstances developed at the trial"). This improper motive supports a finding of
bad faith.[21]
c.
Whether purpose of consent decree was satisfied given passage of
time. We next consider the judge's
holding that this bad faith conduct demonstrated that the purpose of the
consent decree had not been fulfilled as of 2018, and whether that ruling was
an abuse of discretion given the passage of time. For the reasons discussed infra, we conclude
that it was not. In reaching this
conclusion, we recognize that the basis for the judge's finding of continued
bad faith relies heavily on conduct that occurred in 2010, eight years prior to
the denial of the motion in 2018.
Further, it is apparent that after the parties mediated their dispute
concerning the 2010 recertification process, the department went on to issue a
new one-year certification, with conditions, to JRC in 2013. As of the close of evidence in this case,
JRC's 2014 application for recertification was still outstanding, but as far as
we are aware, there have been no additional allegations of bad faith by the
department in the course of performing its regulatory oversight duties between
2010 and the commencement of the hearing in the instant case. Moreover, it has now been over ten years
since the department's motion to terminate was filed.
To be sure, the passage of time, combined
with the turnover of administrations and leadership in an agency, as well as
the cessation of bad faith regulatory misconduct, can provide support for the
eventual termination of a consent decree that binds public officials. See Frew v. Hawkins, 540 U.S. 431, 441-442
(2004); Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 656-657 (1st
Cir. 1997), cert. denied, 524 U.S. 951 (1998).
The Legislature delegates power to an executive agency to make and
enforce rules in accordance with that agency's expertise in light of changing conditions. See Borden, Inc. v. Commissioner of Pub.
Health, 388 Mass. 707, 723-724, cert. denied sub nom. Formaldehyde Inst., Inc.
v. Frechette, 464 U.S. 936 (1983); Mostyn v. Department of Envtl. Protection,
83 Mass. App. Ct. 788, 797 (2013).
Consent decrees enmesh the judiciary in ongoing oversight of such
policy-making decisions, and may serve to "improperly deprive future
officials of their designated legislative and executive powers." Frew, supra at 441. These risks are compounded for decrees that last
decades, requiring ongoing judicial supervision over subsequent actors who are
far removed from the original actors' bad faith misconduct. See Rufo, 502 U.S. at 392 ("To refuse
modification of a decree is to bind all future officers of the State, regardless
of their view of the necessity of relief from one or more provisions of a
decree that might not have been entered had the matter been litigated to its
conclusion"). Thus, to the extent
that a consent decree is based on agency misconduct, evidence establishing that
the improper conduct of the past has been abandoned, and that the agency has
been acting in good faith, would support termination of the consent
decree. See Peery, 977 F.3d at 1075. Contrast MacDonald, 467 Mass. at 388-389
(where court order at issue binds private parties, neither passage of time nor
movant's ongoing compliance are normally sufficient, without more, to justify
termination).
Here, however, the issue of bad faith
regulation as of the judge's ruling in 2018 arises not only from the
manipulation of documents in 2010 or expert opinion in 2008, but also from the
department's continued insistence on using the regulatory process to achieve a
predetermined outcome regarding level three aversives -- namely, to eliminate a
treatment protocol that the Legislature has repeatedly declined to ban,[22]
that judges in the Probate Court have regularly authorized through substituted
judgment, and that the department itself had agreed to permit when it chose to
bind itself to the consent decree -- without an objective consideration of the
evidence concerning the use of the aversives, and without adhering to the legal
requirements imposed upon the department by the courts. In the instant case, we conclude that the
judge could reasonably find that the consent decree remained necessary in 2018
to prevent bad faith regulation because the regulations promulgated by the
department in 2011 again demonstrated its intention to reach this predetermined
outcome without first objectively evaluating the medical evidence or moving to
terminate the consent decree.
The record indicates that, in 2010, after
recent legislative efforts to ban electric skin shock had failed, Bigby sent a
memorandum to the Governor with other policy options to restrict or eliminate
electric skin shock. At that time, she
cautioned that a regulatory ban could be construed as bad faith regulation, and
recommended tabling any policy proposals until the Attorney General completed a
criminal investigation into the August 2007 incident. After the completion of that investigation,
Bigby authored a memorandum in April 2011 with EOHHS's "recommendations
for next steps in our regulatory relationship with JRC." The first recommendation was to move for
termination of the consent decree. The
second recommendation, made "alternatively, or concurrently" to the
first, was for the department to promulgate regulations to prospectively ban
level three aversives.
Two months later, the department proposed
the 2011 regulations. These regulations
were proposed only a year after the 2010 certification report, and while the
dispute about JRC's compliance with the conditions contained in that report
remained ongoing. From the record, it
also appears that there was no effort by the department to undertake an
independent objective review of level three aversives prior to the passage of
these regulations. The department
apparently did not convene experts who considered the issue until after the
regulations had already gone into effect.
Most importantly, by choosing to pass the
2011 regulations before moving to terminate the consent decree -- which, as
explained infra, the department was required to do -- the department
effectively sought to use its regulatory power as an "end run" around
the consent decree. In so doing, the
department again demonstrated that it was determined to alter its policy toward
aversives, regardless of the existence of the consent decree and the legal
constraints contained therein. It was
only later, nearly one and one-half years after those regulations were
promulgated, that the department chose to come before the Probate Court to seek
termination of the consent decree. All
of this supports the judge's conclusion that the consent decree remained
necessary in 2018, despite the passage of time, to preclude bad faith
regulation by the department. We
therefore turn to the issue of changed circumstances of fact and the judge's
finding that no such change had occurred to warrant termination of the decree.
5.
Existence of changed circumstances of fact. In entering the consent decree in 1987, the
Probate Court found that JRC's use of physical aversives was safe, effective,
and professionally acceptable. At that
time, the Probate Court also referenced earlier findings in which the Probate
Court had determined that JRC's use of physical aversives was "consistent
with professional practice" and was employed "in lieu of
antipsychotic medication and other more restrictive procedures, such as seclusion
and painful electric-shock." The
department contends that this is no longer the case, both because JRC now
employs electric skin shock and because the use of electric skin shock is not
within the professional standard of care.
The department also asserts that, regardless of whether electric skin
shock falls within the general standard of care, its practical implementation
at JRC does not. We address each
contention in turn.
a.
Invention of GED. Although the
judge did not explicitly address whether the invention of the GED constituted a
change in circumstances, her failure to do so was not an abuse of
discretion. While the consent decree
predates the use of electric skin shock treatment at JRC, the decree concerns
the use of "all aversive procedures which are presently used or which may
be proposed for use at [JRC]," apart from exceptions not relevant
here. The consent decree also explicitly
states that "[n]othing in this agreement shall preclude [JRC] from developing
new . . . aversive procedures."
Given that the consent decree patently contemplated the development of
new aversives, the fact that the GED was not in use at that time is clearly
insufficient, without more, to warrant termination of the decree. See Rufo, 502 U.S. at 385 ("modification
should not be granted where a party relies upon events that actually were
anticipated at the time it entered into a decree").
In reaching this conclusion, we recognize
that the findings of fact in support of the consent decree referenced earlier
findings in which the Probate Court had determined that JRC's aversive
techniques were less restrictive than "painful electric-shock." That finding was derived from uncontroverted
testimony offered at the preliminary injunction hearing in 1986, wherein one of
JRC's expert witnesses testified about "contingent
electroshock." Despite JRC's
assertion to the contrary, this does appear to be a reference to electric skin
shock akin to the GED. At the 1986
hearing, the expert described "electroshock" as consisting of shocks
that "would be administered for a very, very brief period[,] sometimes,
merely seconds," and explicitly distinguished it from electroconvulsive
therapy.
Nonetheless, this does not alter our
analysis. The same expert -- whose
testimony was credited by the Probate Court in 1986 -- stated that contingent
electric shock remained "less aversive than . . . large dosages of drugs,
[or] . . . electroconvulsive shock therapy." The expert further offered that he would
consider using contingent electroshock if a patient was "likely going to
kill [him- or herself]" and nothing else had "proved to be
effective." Another expert, quoting
from professional literature, offered testimony at one of the six-month review
hearings in 1987 that "very intense punishment such as shock
. . . should be considered for immediate inclusion in treatment"
where there is "imminent and extreme physical danger or when the
self-injurious behavior is so intrusive as to prevent participation in
habilitative and humanizing activities," or when other interventions have
not reduced the self-injurious behavior.
Accordingly, the invention of an electric skin shock device by JRC does
not constitute an unforeseen change in circumstances that would warrant
termination of the consent decree.
This is not to say that JRC's turn toward
electric skin shock as a physical aversive does not require specific
consideration. As stated, in entering
the consent decree, the Probate Court found that, as of 1987, JRC's use of
physical aversives was safe, effective, and professionally acceptable. A change in the safety, efficacy, or
professional acceptability of the physical aversives used by JRC would
constitute a significant and unforeseen change in circumstances. Thus, although the mere invention of the GED,
and its use by JRC, is not a change in circumstances, a finding that its usage
is not safe or professionally acceptable would be. With these principles in mind, we turn to the
judge's findings as to the standard of care and assess whether those findings
were clearly erroneous based on the evidentiary record before the Probate Court
in 2016.
b.
Electric shock and standard of care.
In denying the defendants' motion, the judge below found that, as of the
close of evidence in 2016, there was still no professional consensus that the
use of level three aversives fell outside the standard of care to treat
severely self-injurious and violent behavior.
The department argues that the judge improperly conflated evidence as to
the acceptability of aversive treatments in general with evidence as to the
acceptability of electric skin shock in particular. On the latter subject, the department asserts
that the evidence is clear: there is
"no serious dispute" as to the professional consensus that electric
skin shock is outside the standard of care for individuals with developmental
disabilities.
We recognize, of course, that a
professional consensus does not require unanimity. In any profession, on the most difficult
issues, unanimity of opinion is often nearly impossible to achieve. See Planned Parenthood Fed'n of Am., Inc. v.
Gonzales, 435 F.3d 1163, 1172 (9th Cir. 2006), rev'd sub nom. Gonzales v.
Carhart, 550 U.S. 124 (2007) ("By medical consensus, we do not mean
unanimity or that no single doctor disagrees, but rather that there is no
significant disagreement within the medical community"). That said, our inquiry is limited to whether,
based on the evidence before the Probate Court in 2016, the judge's finding
that no professional consensus existed at that time as to JRC's use of physical
aversives was clearly erroneous.
Our review of the record indicates that
there was support for the judge's finding as of the close of evidence in
2016. In fact, it appears that when the
department filed its motion to terminate the decree in early 2013, now a decade
ago, there was an ongoing debate about the potential necessity of level three
aversives among the very experts that the department elected to consult in
formulating practitioner guidelines.
Separate and apart from any clinicians tasked with reviewing JRC's
regulatory compliance or treatment plans,[23] experts that the department
selected to serve on its PBS advisory subcommittee expressed ambivalence in
2012 and 2013 about whether electric skin shock was outside the acceptable
standard of care. Indeed, the
subcommittee was nearly unanimous[24] in its rejection of draft PBS guidelines
on the use of procedures to "decelerate challenging behavior," which
included language prohibiting electric skin shock and other level two and three
aversives, because members were "uncomfortable with banning specific
procedures." The co-chair of the
subcommittee, Dr. Christopher Fox, suggested an alternative set of guidelines
that would call for individualized, evidence-based treatments, with rigorous
training and monitoring requirements.[25]
Another member of the subcommittee, Dr. Steve Woolf, expressed a similar
sentiment, writing:
"[Level
three interventions] should be implemented based on three ethical considerations: 1) client's right to safe and humane
treatment, 2) the behavior analyst's responsibility to use the least
restrictive procedure, and 3) the client's right to effective treatment. In my experiences, [there] is a very small
minority of clients that may require . . . a level three intervention. Banning these evidenced-based [sic] positive
punishment treatments raises very important ethical concerns when serving
clients with chronic life-threatening problem behaviors. Failing to use these procedures that research
has shown to be effective in suppressing self-destructive behavior that have
[sic] not responded to positive reinforcement, extinction, or less intrusive
intervention is unethical because doing so withholds potentially effective
treatment and risks maintaining a dangerous state. . . .
"I would
agree to stronger regulation, oversight, and quality assurance monitoring of
these punishment based procedures.
However, the outright prohibition of level three [interventions]
requires more time to study."[26]
Other members of the subcommittee
similarly expressed concerns that more work was necessary on this issue, with
one member stating that "practices regarding the most severely
behaviorally challenged individuals requires a much greater degree of
collaboration, specification, research and consensus than has been achieved
thus far."
The department seeks to downplay these
discussions by highlighting the fact that the experts did not explicitly
identify electric skin shock in their comments, and argues that they were
instead referencing other level three aversives. However, the theme that emerges from all of
these communications is a discomfort with banning any specific procedures in
that category, which would include electric skin shock, without additional
evidence and research. And importantly,
when the concerns of these experts were relayed to the department, the
department responded by silencing any further debate among the subcommittee as
to level three aversives. Indeed, from
the outset of the subcommittee's consideration of this topic, the department
bluntly informed the co-chair that "it [wouldn't] matter" if the ABA
literature supported the efficacy and professional acceptability of specific
decelerative procedures when it came to procedures that the commissioner
"[did] not like."
There was also evidence that this debate
was not isolated to experts consulted by the department. The 2016 edition of the ABA textbook
"Contemporary Behavior Therapy (Sixth Edition)," excerpts of which
were admitted at trial, states that "mild electric shock often is an
effective and efficient means of significantly reducing self-injurious
behaviors." Additionally, Dr.
Richard Foxx, a national expert in this area, believed that the use of electric
skin shock may be necessary to treat a "very, very small number of
exceptional cases where the individual's behavior was so extreme as to be life
threatening."[27]
Testimony provided by the plaintiffs about
the efficacy of JRC's treatment methods formed another source of evidence that
the judge could reasonably consider in assessing this issue. Although the department dismisses this
evidence as "anecdotal," the testimony credited by the judge reflects
that, for many families with children at JRC, its treatment methods were not
only effective, but also considered more humane than the course of restraint
and pharmacological sedation to which their children had previously been
subjected. One mother testified that,
prior to JRC, her daughter had a long history of school expulsions and
hospitalizations due to her severe aggressive behaviors. The daughter had previously been prescribed
Abilify and Risperdal, among upwards of twenty other medications, and had been
subject to long periods of seclusion and restraint at prior placements. All were unsuccessful in treating her violent
behaviors. By the time she enrolled at
JRC, it was the only facility in the Commonwealth that was willing to take
her. And in contrast to the prior
treatment inventions she had received, JRC's treatment protocol was effective
in minimizing her behavioral problems, allowing her to go on field trips and
other outings. As her mother testified,
"[My daughter] says her whole world opened up. . . . She has gone from a person that is isolated
and medicated and injured and unhappy to a young person that is happy and able
to live in a world and experience what other people experience." A father testified that his son came to JRC
with incredibly harmful behavioral issues, including rectum and throat gouging,
eye picking, and self-induced vomiting.
After being placed at JRC and treated with the GED, and in contrast to
prior pharmacological treatments, the dangerous behaviors substantially decreased. The father testified that his son is
"happier now than he's ever been" and engages in hobbies and field
trips.
A former JRC patient who testified at
trial described experiencing a similar journey.
Prior to JRC, she had repeatedly been expelled from residential
placements, and had been rejected from as many as thirty-seven programs, due to
extremely violent behaviors that she exhibited toward herself and others. During this time, she was treated with
numerous medications, which she testified had the effect of making her feel
like a "zombie," and was repeatedly placed in physical restraints,
including straightjackets. When she
finally came to JRC and began treatment with the GED, her self-injurious
behaviors drastically decreased, until they went away completely. She eventually went on to receive her high
school diploma, obtained gainful employment, and now has children of her
own. These testimonials are also echoed
in a description offered by one of the independent clinicians tasked with evaluating
JRC treatment plans, in an e-mail message sent to the department's general
counsel:
"Having
visited institutions and programs all over the country, and in some foreign
countries, I have rarely, if ever, seen clients with the degree of disability
seen at JRC dressed in shirts and ties, living in community housing and earning
weekends at community recreation, shopping, and dining activities."
To be sure, despite these examples, and as
the judge below appropriately recognized, the use of level three aversives
remains bitterly contested and controversial, even when it is limited to a
class of patients for whom other treatment protocols have failed, and
authorized only through substituted judgment proceedings. As the judge acknowledged, JRC stands alone
in using electric skin shock to treat such patients, when other facilities
would decline to do so. And as the
department highlights, the National Association of State Directors of
Developmental Disabilities Services has rejected the use of electric skin
shock, many clinicians regard electric skin shock as a treatment that does not
fall within the standard of care, and as the judge found, approximately
one-half of States have banned its use on the developmentally disabled. Nonetheless, we cannot conclude that the
judge's finding regarding the use of aversives was clearly erroneous based on
the evidentiary record before the Probate Court in 2016. See Demoulas, 424 Mass. at 510 ("Where
there are two permissible views of the evidence, the factfinder's choice
between them cannot be clearly erroneous" [citation omitted]).
In reaching this conclusion, however, we
remain troubled that we do so based on a record that is nearly a decade
old. The correspondence between members
of the PBS subcommittee in 2012 and 2013 reflects a concern that additional
evidence, research, and dialogue would be necessary to achieve a
consensus. Yet, in response to those
concerns, the department decided that "it was not appropriate" for
the subcommittee to consider the issue further.
We also do not know whether these experts later changed their mind based
on additional information, or whether other significant research and treatment
developments have taken place since the close of evidence in 2016. And when asked at oral argument whether this
case should be remanded for further findings in this regard, the department was
adamant that it not be. Thus, we do not
reach the propriety of electric skin shock treatment in 2023, as we do not have
the record to do so, and we therefore do not foreclose the possibility that new
scientific developments or a more recent evidentiary record would suffice to
demonstrate a change in the standard of care.
See MacDonald, 467 Mass. at 394 ("Although we conclude that the
judge here, on this record, did not abuse her discretion in denying the
defendant's motion to terminate the abuse prevention order, we leave open the
possibility that the defendant might be able to meet his burden if he were to
renew his motion with a stronger evidentiary foundation").
c.
JRC's implementation of GED. The
department contends that, regardless of whether the use of electric skin shock
is acceptable as a general matter, its use at JRC is improper because it is not
employed solely as the least restrictive method of treatment. The department points to expert testimony and
video footage admitted at trial, which shows eleven specific instances in which
the GED was applied to seemingly minor behaviors, as proof that "JRC
regularly misuses GED."
Importantly, the department does not
appear to be arguing that JRC is violating or subverting the authorization
provided by its court-approved treatment plans.
Rather, the department principally takes issue with some of the
behaviors for which JRC has been granted court approval to use the GED. Yet the department retains the authority to
participate in the annual substituted judgment proceedings in which those
individual treatment plans are approved.
And as we have previously stated, if the department's monitoring of JRC
"reveals any problems [in an individual treatment plan], that information
should be brought to the judge who has authorized the use of aversive
treatments." JRC I, 424 Mass. at
447 n.20. However, as the judge below
found, the department regularly declines to do so, despite being given the
opportunity to weigh in on a yearly basis, and despite having access to the
materials that JRC uses in support of its substituted judgment petitions. See 115 Code Mass. Regs. § 5.14(4)(d)(6)
(2011). Given the department's failure
to utilize these existing means of preventing any unjustified application of
the GED in particular circumstances, we cannot discern why those existing
corrective measures are inadequate and why elimination of the consent decree in
total is an appropriate remedy. The department
can and should raise these specific concerns in the yearly substituted judgment
proceedings before the Probate Court.
6.
Whether continued enforcement of consent decree violates separation of
powers. The department further argues
that the decree interferes with the department's regulatory authority, in
violation of the separation of powers expressed in art. 30 of the Massachusetts
Declaration of Rights. We disagree.
This is not the first time that we have
considered the relationship between the consent decree and the department's
constitutional regulatory authority. In
response to a similar argument raised by the department in JRC I, 424 Mass. at
445, we indicated that "to read the [consent decree] as a delegation of
all regulatory authority" would raise constitutional concerns. However, the consent decree contained no such
provision to this effect, and we concluded that it was reconcilable with art.
30. See id. In so doing, we distinguished those
regulatory powers that the department retains from those actions that must give
way to the consent decree and judicial enforcement. In explaining that distinction, we stated
that the department retained "authority regarding certification requirements
[and] compliance with applicable regulations," but that the consent decree
reserved "the ultimate decision on an individual's treatment" to the
judiciary, via substituted judgment. See
id. at 445-446. We also explained more
specifically that the department was precluded from using "bad faith
regulatory practices . . . [to] ensure that no individual
. . . receive[s] aversive therapies at JRC." Id. at 449.
We address this "bad faith"
regulatory constraint first, and its relevance to the evidentiary record before
the court as of 2016.[28] Given the
department's history of using its regulatory power in bad faith to halt the use
of physical aversives and interfere with JRC operations, it was
constitutionally permissible to impose certain restrictions on regulatory
changes by the department that would limit the use of level three
aversives. This is not a separation of
powers problem. Rather, the department's
own bad faith regulatory practices (and those of its predecessor) justified
imposing limitations on its regulatory authority, by way of a consent decree,
as a form of remedial action. See JRC I,
424 Mass. at 461; Matter of McKnight, 406 Mass. 787, 807 (1990) (Liacos, C.J.,
dissenting) (general practice of judicial deference to agency expertise "is
not absolute; it gives way in the face of agency misbehavior"). By agreeing to be bound by the decree, the
department agreed to additional restrictions on its own ability to regulate
level three aversives in any manner that would exceed the constraints imposed
by the consent decree. The department
also bound itself to the requirement of demonstrating a change in circumstances
before it could escape the constraints contained within the decree.
These constitutionally permissible
constraints precluded the regulatory change proposed by the department in the
2011 regulations. The use of level three
aversives was authorized by the Probate Court, pursuant to the substituted
judgment process, when it was found to be the least intrusive and most
appropriate means of preventing significant harm for an individual
patient. The 2011 regulations took that
power away from the Probate Court, and thus constituted an impermissible end
run around substituted judgment proceedings.
Further, the department was well aware of the existing consent decree at
the time it chose to promulgate the 2011 regulations, and yet made no attempt
to terminate the decree prior to doing so.
It is not a separation of powers problem to enforce the consent decree
and its constraints in this context or to consider the 2011 regulations as
another example of bad faith regulatory misconduct.
Nor do we find persuasive the department's
contention that a prospective regulatory ban on level three aversives is
permissible because it does not interfere with any existing patient's treatment
plan or the substituted judgment process overseen by the judiciary. This is far too narrow a reading of our prior
decision in JRC I. The consent decree's
limitation on the regulatory powers of the department, which came about as a
result of the bad faith conduct of the department's predecessor, was not
limited to existing JRC patients but extended to the department's supervision
over JRC's operations more generally.
Nor were these constraints limited to interference with the substituted
judgment process in an individual patient's treatment plan. See JRC I, 424 Mass. at 449 ("it would
be absurd to conclude that, although the agreement was intended to settle
claims that the department's predecessor was improperly denying the patients
needed aversive therapy, the department could, through bad faith regulatory
practices, ensure that no individual could receive aversive therapies at
JRC").
Thus, the department may not prospectively
ban the use of level three aversives for all new patients, in the absence of
changed circumstances, without running afoul of the consent decree. The existence of such a change in
circumstances requires a judicial determination to that effect, not a
unilateral decision by the department.
If the department could simply pass a new regulation at any point to
prospectively ban the use of level three aversives, the consent decree would be
a pointless paper tiger, ignoring the department's past misconduct and the
resulting consequences.
This does not mean that the department is
powerless to prevent the improper use of the GED. The judge below found that "physical
aversive treatment has not been effective for all JRC students and may not be
the least restrictive procedure available to treat every student receiving physical
aversive treatment." To the extent
that the department agrees that this is the case for any particular patient, it
can and should register those objections with the Probate Court. We believe this division of authority is in
keeping with JRC I and separation of powers principles.
Finally, we address the department's
argument that failing to terminate the consent decree violates the department's
statutory mandate. The department is
charged with "mak[ing] regulations for the operation" of providers of
residential services like JRC, see G. L. c. 19B, § 15 (a), as
well as "adopt[ing] regulations . . . which establish procedures and the
highest practicable professional standards for the reception, examination,
treatment, restraint, transfer and discharge of persons with an intellectual
disability in departmental facilities," see G. L. c. 123B, § 2. The statutory scheme requires that this
latter type of regulation "be adaptable to changing conditions and to
advances in methods of care and treatment and in programs and services for
persons with an intellectual disability."
Id.
Such a mandate must certainly be
respected. Further, we note that the
department's ability to pass regulations unrelated to level three aversives is
totally unaffected by the consent decree.
The only issue is whether the department can change regulations related
to level three aversives. In this
regard, evidence of changing conditions and advances in methods of care and
treatment are critical considerations in assessing whether changed
circumstances justify termination of the consent decree and its limitation on
the department's regulatory authority.
The judge's fact findings, however, reject the conclusion that advances
in methods of care and treatment as of the close of evidence in 2016 supported
the elimination of level three aversives for these deeply troubled
patients. Rather, the expert testimony
from 2015 and 2016, or at least the judge's fact finding regarding that testimony,
supported preservation of level three aversives as an option of last resort for
this particular group at that time. We
express no opinion whether further medical advances since the hearing, or a
better evidentiary record regarding such advances, would justify lifting the
consent decree now or in the future.
7.
Existence of changed circumstances of law. Finally, we address the department's
remaining arguments as to changes of law that would warrant termination of the
consent decree. For the reasons
discussed infra, the judge did not abuse her discretion in declining to grant
relief on this basis.
a.
Change in Federal reimbursement policy for JRC services. The department highlights that the Centers
for Medicare & Medicaid Services, a division of the Department of Health
and Human Services that oversees the Federal administration of Medicaid and
Medicare, indicated in 2012 that it would no longer deem JRC's services
eligible for reimbursement from its Home and Community-Based Services waiver
program.[29] As a result, the Commonwealth
has expended additional funds to make up for the shortfall in Federal
reimbursement. From 2012 to 2015, this
amounted to $7.7 million.
Although the judge did not address this
change in Federal policy, her failure to do so was not an abuse of
discretion. Even though financial
constraints "are a legitimate concern of government defendants," they
are normally assessed within the context of "tailoring a consent decree
modification," rather than its wholesale termination. Rufo, 502 U.S. at 392-393. This is not to say that financial constraints
could not warrant termination, but only that the department has not sought to
explain the impact of this funding burden or what strain it has placed on State
resources. Without any such information,
we are unable to conclude that this is evidence per se to warrant termination
of the decree.[30]
b.
2011 regulations. The 2011
regulations, through which the department prospectively sought to ban the use
of level three aversives on new patients, do not constitute a change in
circumstances either. These regulations
were promulgated by the department, a party bound by the decree, and cannot
form the basis for permitting the department to escape, extrajudicially, the
obligations it voluntarily agreed to assume, for the reasons discussed
supra. That much should have been clear
from our prior opinion. See JRC I, 424
Mass. at 449 (observing that it would be "absurd" to conclude that
department could sidestep obligations under consent decree by resorting to "bad
faith regulatory practices" for purpose of "do[ing] indirectly what
[the] order makes clear [it] cannot do directly"). See also Delaware Valley Citizens' Council
for Clean Air v. Pennsylvania, 533 F. Supp. 869, 876 (E.D. Pa.), aff'd, 678
F.2d 470 (3d Cir. 1982) ("A party should not be permitted, however, to
obtain a modification of a consent decree because of changed circumstances of
its own creation").
By contrast, a legislative ban on the use
of electric skin shock would constitute a change in circumstances.[31] See Rufo, 502 U.S. at 388. And indeed, it is apparent that, during the
relevant period at issue in this case, EOHHS's preferred strategy for changing
the Commonwealth's policy toward electric skin shock was a legislative
ban. It was only in 2010, after no
legislative solution materialized, that Bigby provided the Governor with other
policy options to restrict or eliminate aversives. However, Bigby's first instinct was correct
-- any change in circumstances cannot be manufactured by way of regulatory
changes promulgated by the very agency bound by the decree.
If the department seeks to get out from
under the decree, it must either wait for a legislative solution, provide more
robust evidence that electric skin shock is outside the standard of care than
the record it relied upon in 2016, or establish an ongoing record of good faith
regulatory conduct toward JRC. In the
interim, of course, the department is always free to intervene in any individual
substituted judgment proceeding where it objects to the use of the GED for a
particular patient. Indeed, in the one
recent case where the department chose to do so, it prevailed. The wisdom of the department's decision not
to avail itself of this option for any other patient is not before us.
Judgment
affirmed.
footnotes
[1] Formerly
known as Behavior Research Institute, Inc.
[2] Leo Soucy,
individually and as parent and next friend of Brendon Soucy; Peter Biscardi,
individually and as parent and next friend of P.J. Biscardi; and both as
representatives of the class of all patients at Judge Rotenberg Educational
Center, Inc. (JRC), their parents, and their guardians. The former executive director of JRC was
originally listed as a plaintiff as well.
[3] Commissioner
of the Department of Early Education and Care.
The director of the Office for Children, the predecessor in interest to
the defendants, was originally listed as a defendant in her ex officio
capacity.
[4] We
acknowledge the amicus brief submitted by the American Academy of Pediatrics,
the American Association on Intellectual and Developmental Disabilities, the
National Association of State Directors of Developmental Disabilities Services,
the National Association of State Directors of Special Education, the
International Association for the Scientific Study of Intellectual and
Developmental Disabilities, the National Association for the Dually Diagnosed,
and the Massachusetts Chapter of the American Academy of Pediatrics, as well as
the amicus brief submitted by The Arc of Massachusetts, the Disability Policy
Consortium, the Massachusetts Developmental Disability Council, the Federation
for Children with Special Needs, and MassFamilies. In addition, we allow the plaintiffs' joint
motion for leave to respond to the briefs of the amici curiae. See Mass. R. A. P. 17 (b), as appearing in
481 Mass. 1635 (2019).
[5] At the time
of its founding, JRC was known as Behavior Research Institute, Inc. See note 1, supra. For the sake of consistency, we shall refer
to the facility as JRC throughout this decision.
[6] Substituted
judgment proceedings are used as a "means by which incompetents may
exercise their right to refuse or terminate treatment. . . . The judge, after hearing, must try to
identify the choice which would be made by the incompetent person, if that
person were competent, taking into account the present and future incompetency
of the individual as one of the factors which would necessarily enter into the
decision-making process of the competent person" (quotation and citation
omitted). Guardianship of Doe, 411 Mass.
512, 518 (1992).
[7] Because JRC
provided treatment to children with special needs, in a full-time residential
setting, it was at that time required to obtain a license from the Office for
Children (OFC). See G. L.
c. 28A, §§ 9, 11, as amended through St. 1981, c. 726, § 1. OFC is now known as the Department of Early
Education and Care (DEEC). See
Commonwealth v. Power, 76 Mass. App. Ct. 398, 400 n.2 (2010). DEEC is the other named defendant in this
appeal.
[8] At the time
that the Department of Developmental Services (department) became a party to
the case, it was known as the Department of Mental Retardation. See G. L. c. 19B, § 1, as amended
through St. 2008, c. 182, § 9.
[9] At the time
the regulations were first promulgated, the Department of Mental Health was the
agency responsible for certifying programs for use of level three
aversives. See 104 Code Mass. Regs.
§§ 2.02(2), 20.15(4)(f) (1987).
This responsibility was subsequently transferred to the Department of
Developmental Services.
[10] It should be
noted, however, that there are references in the record to other facilities
that have, at various times, used a level three aversive because they employed
time-outs beyond fifteen minutes. See
104 Code Mass. Regs. § 20.15(3)(d)(2) (1987) (defining level three
aversives to include time-outs in excess of fifteen minutes). See also Judge Rotenberg Educ. Ctr., Inc. v.
Commissioner of the Dep't of Mental Retardation (No. 1), 424 Mass. 430, 447
n.20 (JRC I), S.C., 424 Mass. 471, 424 Mass. 473, and 424 Mass. 476 (1997)
(noting that department had permitted use of aversive therapies on individual
patients at various facilities, even though department official conceded that
"there is no authority in the regulations for approval of Level III
procedures 'in the absence of a certification as a program'").
[11] Positive
Behavior Supports (PBS) focuses on the conditions that precede problem
behaviors and the environmental changes that can be made to improve a client's
quality of life. The judge below found
that PBS was more accurately described as a philosophy or general approach to
treatment, rather than a subdiscipline within the field of psychology.
[12] The
department went on to amend its regulations that year to remove certain level
two aversives, including procedures requiring significant physical exercise,
unpleasant sensory stimuli like loud noises or bad tastes, and meal
delays. See 115 Code Mass. Regs.
§ 5.14(3)(c)(1) (2013). However, it
was not until 2020 that new regulations went into effect replacing the existing
regulations governing behavior modification with a PBS framework. See 115 Code Mass. Regs. §§ 5.14, 5.14A
(2020).
[13] The parties
have characterized the defendants' pleading as a motion to "vacate"
the consent decree. However, the
defendants' motion "did not challenge the grounds on which [the consent
decree] was earlier entered," but "sought only to prevent its
prospective application." MacDonald
v. Caruso, 467 Mass. 382, 384 n.4 (2014).
Accordingly, the motion is most appropriately understood as a request to
terminate, rather than vacate, the decree.
See id. See also Inmates of
Suffolk County Jail v. Rouse, 129 F.3d 649, 662 (1st Cir. 1997), cert. denied,
524 U.S. 951 (1998) ("While terminating a consent decree strips it of
future potency, the decree's past puissance is preserved and certain of its
collateral effects may endure. Vacating
a consent decree, however, wipes the slate clean, not only rendering the decree
sterile for future purposes, but also eviscerating any collateral effects and,
indeed, casting a shadow on past actions taken under the decree's
imprimatur").
[14] The
three-year delay between the department's notice of appeal and the entry of
this case in the Appeals Court appears to have been due to the size of the
record, compounded by delays in receiving searchable copies of the electronic
transcript files, as well as lapses in communication between the clerk's office
of the Probate and Family Court (Probate Court), the parties, and the
stenographers.
[15] JRC has
argued that DEEC's appeal should be dismissed because DEEC failed to file a
brief after the case had been entered in this court. DEEC, which joined in the notice of appeal
and docketing statement, has since moved to join the department's appellate
brief. DEEC has argued that it failed
join the department's brief at the time of filing because counsel for the
defendants "mistaken[ly]" believed that DEEC had no further
obligations under the decree, given that no children enrolled at JRC are
approved for use of level three aversives.
JRC has failed to articulate any prejudice that would stem from allowing
DEEC's motion to join the department's briefing. Accordingly, we allow DEEC's motion to join
the department's brief and decline JRC's invitation to dismiss DEEC's appeal.
[16] We recognize
that the consent decree contained a provision calling for a court monitor to
evaluate JRC's compliance with department regulations that did not concern
level three aversives. We previously
declined to address the permissibility of this provision, stating:
"We do not
consider whether the portion of the agreement providing that it was the court
monitor, not the department, that was to oversee compliance with all other
applicable State regulations except those related to Level III aversives and
undertake general monitoring of JRC's treatment and educational program
constituted an impermissible delegation of regulatory authority. The findings of the judge with respect to
this portion of the settlement agreement are not necessary for our decision
here; we note, moreover, that neither side disputes that JRC was required to be
certified according to the department's regulations, and it is that
certification process and its relationship to the settlement agreement that is
before us."
JRC I, 424 Mass.
at 445 n.19. Regardless, the winding
down and eventual termination of the receivership resulted in these other
regulatory functions being returned to the department.
[17] Because the
second purpose -- concerning JRC's ability to use aversives pursuant to court authorization
-- implicates the interplay between the consent decree and the department's
residual regulatory authority, we address it as part of our discussion of the
separation of powers argument raised by the defendants.
[18] We note that
this bad faith finding is based on conduct that occurred thirteen years ago and
an evidentiary hearing that concluded in 2016.
We stress again that our analysis does not foreclose the possibility
that new developments have occurred since the record closed here bearing on
these factual issues.
[19] While
language was removed from the "Safety Review of GED and GED-4 Device"
section, as well as the "Peer Review" section, and small revisions
were made to the "Level II Interventions in Use" section, these edits
appear to be more stylistic than substantive.
[20] We also note
the alteration of condition (2) (g) from requiring JRC to engage a
"multidisciplinary" team to instead requiring an "external"
one comprised of at least three clinicians with ABA expertise.
[21] In light of
our conclusion that the department's revisions to the 2010 certification report
supported the judge's finding of bad faith, we need not address the third basis
for the judge's finding of bad faith -- namely, her determination that "by
accepting certain recommendations of the 2010 Level III Certification Team,
[the department] impermissibly made treatment decisions for JRC
clients." We further note that the
complex interplay between the consent decree and the department's residual
regulatory authority is an issue we address separately in our discussion of the
department's separation of powers argument.
[22] Although
there has been no shortage of legislative proposals to ban aversive treatments,
none has passed. See, e.g., 2023 House
Doc. No. 180; 2021 House Doc. No. 225; 2019 House Doc. No. 123;
2017 House Doc. No. 93; 2015 House Doc. No. 89; 2015 Senate Doc.
No. 80; 2013 House Doc. No. 106; 2013 Senate Doc. No. 30; 2011
Senate Doc. No. 51; 2011 House Doc. No. 77; 2009 House Doc.
No. 154. Other proposals to
restrict or study aversive treatments have similarly failed. See 2023 House Doc. No. 170; 2022 House
Doc. No. 4956; 2015 Senate Doc. No. 79; 2013 Senate Doc. No. 28;
2011 Senate Doc. No. 49; 2009 House Doc. No. 183; 2009 Senate Doc.
No. 45.
[23] There was
also testimony, which the judge below referenced in her findings, to indicate
that the independent clinicians who monitor JRC's regulatory compliance and
treatment plans believed that the GED remained within the professional standard
of care.
[24] Although the
subcommittee co-chair described the subcommittee's opinion as
"unanimous" on this issue, he also noted that three members were
absent from the portion of the meeting in which the issue was discussed.
[25] In a later
e-mail message, Fox went on to acknowledge that the 2011 regulations, which
predated the formation of the subcommittee, had already served to limit the use
of electric shock to those patients with existing GED treatment plans; he
nonetheless opined that, "[i]n an ideal world I would like all
interventions to be available," even though "in the world as it
exists currently that is not the case."
[26] The
department points out that this e-mail message was subject to an evidentiary
objection, and the judge admitted it for a limited purpose. However, the judge later admitted the same
e-mail message as a separate exhibit, without limitation, and the department
did not object.
[27] While not
necessary to our analysis, we also note that two separate Federal court cases
involving JRC from 2010 and 2012 reference the existence of such a debate
within the context of addressing claims brought under the Individuals with
Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. See Bryant v. New York State Educ. Dep't, 692
F.3d 202, 215 (2d Cir. 2012), cert. denied, 569 U.S. 958 (2013) (referencing
"ongoing debate among the experts regarding the advantages and
disadvantages of aversive interventions and positive-only methods of behavioral
modification"); Alleyne v. New York State Educ. Dep't, 691 F. Supp. 2d
322, 332 (N.D.N.Y. 2010) ("It is readily apparent that the use and
benefits of aversives in an educational setting is a divisive issue among
educational professionals").
[28] In so doing,
we note that we have not been presented with any allegations or evidence of bad
faith since that date and do not purport to address whether any bad faith
conduct has occurred in the seven years that have elapsed since the close of
evidence.
[29] The Home and
Community-Based Services (HCBS) waiver is a program that enables States to
receive Federal funding for community-based services provided to individuals
who would otherwise be institutionalized.
[30] As the
department appears to acknowledge in its reply brief, the decision by the
Centers for Medicare & Medicaid Services (CMS) to stop reimbursements for
JRC services was not competent evidence of a change in the professional
standard of care, as the department presented evidence of CMS's decision only
for the limited purpose of showing that Federal funding for HCBS waiver
participants at JRC had been revoked.
[31] The
department and the amici also make reference to a rule promulgated by the Food
and Drug Administration (FDA) in 2020 that banned the use of electric shock
devices for treatment of severe self-injurious or aggressive behavior. See 85 Fed. Reg. 13,312 (2020). This rule -- which was promulgated after the
judge issued her decision below -- was later vacated by the United States Court
of Appeals for the District of Columbia Circuit as exceeding the FDA's
authority. See Judge Rotenberg Educ.
Ctr., Inc. v. United States Food & Drug Admin., 3 F.4th 390, 393 (D.C. Cir.
2021). We note, however, that in
December 2022, Congress amended the statutory language that formed the basis
for the District of Columbia Circuit's decision to vacate the rule. See Pub. L. No. 117-328, § 3306, 136 Stat.
4459, 5834 (2022). In a letter filed
pursuant to Mass. R. A. P. 16 (l), as appearing in 481 Mass. 1628 (2019), the
department indicates that the FDA has recently announced its intent to issue a
proposed rule that would again ban the use of devices like the GED. If the FDA does, in fact, promulgate the same
rule again, that may well warrant termination of the decree. See Atlanticare Med. Ctr. v. Division of Med.
Assistance, 485 Mass. 233, 247 (2020).
See also Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 388 (1992)
("A consent decree must of course be modified if, as it later turns out,
one or more of the obligations placed upon the parties has become impermissible
under federal law").