COMMONWEALTH OF MASSACHUSETTS
I THE TRIAL COURT 
PROBATE AND FAMILY COURT DEPARTMENT

BRISTOL DIVISION DOCKET NO. 86E-0018-GI

 

JUDGE ROTENBERG EDUCATIONAL CENTER,
INC., et al.,
Plaintiffs

V.

COMMISSIONER of the DEPARTMENT OF
DEVELOPMENTAL SERVICES, et al.,
Defendants



 

RELEVANT BACKGROUND AND PROCEDURAL HISTORY,
FINDINGS OF FACT, AND RATIONALE 
on Defendants? Motion under Probate and Family Court Rule 60 and
Mass. R. Civ. P. 60(b)(5) to Vacate Consent Decree
(?led February 14, 2013)

By their Motion to Vacate Consent Decree (?Motion to Vacate?) ?led pursuant to
Probate and Family Court Rule 601 and Mass. R. Civ. P. 60 (5), Defendants seek to vacate a
consent decree entered by this Court (Rotenberg, J.) on January 7, 1987 (?Consent Decree?).

A 44?day evidentiary hearing and closing arguments on this matter took place between
October 26, 2015 and October 17, 2016. The Court admitted into evidence 788 exhibits
including documents, photographs, and video recordings, and the Court heard testimony from
almost 30 witnesses. 

Plaintiff Judge Rotenberg Educational Center, Inc. was represented at trial by
attorneys Michael P. Flammia, Charlotte L. Bednar, and Matthew Rodgers. Attorney Max D.

 

1 The Court presumes that Defendants intended to refer to Supplemental Probate and Family Court
Rule 60, which provides that all cases not governed by the [Massachusetts Rules of Domestic
Relations Procedure], motions for relief ?om judgment or order shall be governed by Mass. R. Civ. P.
60.?

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(gab?i

 

Stern represented Leo Soucy (?Soucy?), Individually and as Next Friend of Brendon Soucy, 
Peter Biscardi, Individually and as Next Friend of P.J. Biscardi, et a1. Attorney C. Michelle
Dorsey represented the student members of the Plaintiff class. Defendants Commissioner of The
Department of Developmental Services and The Department of Early Education and
Care were represented by attorneys Frances S. Cohen, Timothy D. Hartnett, and
Susika Wylie, Assistant Attorneys General within the Government Bureau of the Of?ce of
Attorney General Martha Coakley, as well as by attorneys Marianne Meacham (?Attorney
Meacham?) and Kathleen H. Gallagher of the Department of Developmental Services.

After consideration of all evidence presented at the evidentiary hearing, the Court hereby
enters the following Relevant Background and Procedural History, Findings of Fact, and
Rationale:

I. RELEVANT BACKGROUND AND PROCEDURAL HISTORY

1. RC, formerly known as the Behavior Research Institute has since 1975 operated a
residential program providing educational and treatment services for individuals with
intellectual disabilities, developmental disabilities, and behavior disorders. The school was
renamed RC following the death of Judge Ernest Rotenberg, who presided over the 1980s
proceedings resulting in the Consent Decree which DDS is requesting be vacated.

2. DDS is a Massachusetts state agency under the Executive Of?ce of Health and Human
Services DDS is the agency that succeeded to the obligations under the
Consent Decree of the original defendant Mary Kay Leonard, who was sued individually
and as the Director of the former Of?ce for Children In 1988, the Department of
Mental Retardation assumed the obligations of the Department of Mental Health
under the Consent Decree. DDS is successor to DMR. The Massachusetts state
agencies currently bound by the consent decree are DDS and DEEC. Pursuant to G. L. 0.
19B, 15, DDS is charged with licensing all programs that ?offer[] to the public residential
or day care services and [are] represented as providing treatment of persons with an
intellectual disability? or a ?developmental disability,? except for facilities that are licensed
by another agency. DDS licenses I RC and certi?es its use of Level treatment.

3. Level treatment/interventions are de?ned in the DDS regulations (115 CMR
as follows: 1

1. Any Intervention which involves the contingent application of physical contact
aversive stimuli such as spanking, slapping, hitting or contingent skin shock.

2. Time Out wherein an individual is placed in a room alone for a period of time
exceeding 15 minutes. i

3. Any Intervention not listed in 115 CMR 5.14 as a Level I or Level II Intervention
which is highly intrusive and/or highly restrictive of freedom of movement.

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4. Any Intervention Which alone, in Combination with other Interventions, or as a
result of multiple applications of the same Intervention poses a signi?cant risk of
physical or harm to the individual.

Since their adoption in 1987, the DDS regulations have expressly restricted Level 
certi?cation to programs then using Level interventions: program shall be eligible for
consideration for certi?cation for use of Level Interventions only if, prior to the effective
date of 115 CMR 5.14, the program had been using one or more Level Interventions
pursuant to a Behavior Modi?cation plan for one or more clients of the program. This
restriction on eligibility shall continue in effect inde?nitely and shall be modi?ed only by
amendment of 115 CMR 5.14. Such amendment shall only be proposed or adopted by the
Commissioner [of in the event that he or she ?nds that there exists a compelling need
for treatment with such Interventions that cannot be met within existing programs or
through alternative programs.? 115 CMR 

In addition, per the DDS regulations, Level interventions ?may be used only to address
extraordinarily dif?cult or dangerous behavioral problems that signi?cantly 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.? 115 CMR


On February 28, 1986, BRI and a class of students and parents ?led the original action that
resulted in the January 7, 1987 Consent Decree at issue in this matter. The plaintiffs?
Amended Veri?ed Complaint alleged that OFC had engaged in bad faith regulatory and
licensing activities and violated the civil rights of the patients. Such activities included
allegations that OFC suppressed an OF certi?cation report favorable to BRI and that OFC
issued an emergency order on September 26, 1985 that BRI cease the use of any physical
aversives and ?contingent food programs,? and cease the intake of new students. The
plaintiffs alleged that actions unlawfully deprived the individual plaintiffs of: rights
?to minimally adequate treatment and training to prevent self-abuse and maintain basic self?
care skills? under the Massachusetts Constitution and Declaration of Rights (Count state
law rights including to educational services designed to ensure their ?maximum possible
developmen under G. L. 0. 71B, 1 (Count ?the sound and coordinated development
of services to children? under G. L. c. 28A, 1 (Count and rights to due process and
?eedom from arbitrary and irrational state action. In addition, plaintiffs alleged, 
actions deprived BRI and the individual plaintiffs of the right to due process and ?freedom
from arbitrary and irrational state action? (Count IV). In the Amended Veri?ed Complaint,
the plaintiffs requested, inter alia, that the Court issue injunctions enjoining OFC from
?ordering or instructing BRI to cease the use of physical aversives when the use of such
aversives is necessary to provide BRI students with the level of treatment and training
necessary to prevent regression or deterioration of self-care skills or self-abuse, and to
attain their maximum possible development.? A Third Amended Complaint ?led several

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menths later added Counts for violation of the state Civil Rights Act, G. L. c. 12, and the
Administrative Procedure Act, G. L. 0. 30A.

After a four-day hearing held in May 1986, on June 4, 1986 the Court (Rotenberg, J.)
allowed request for a preliminary injunction on the underlying pending complaint.
The Court found that despite a. licensing re-study report ?laudatory to BRI in all substantial
respects,? OFC nevertheless ordered that physical aversive therapies be terminated and
prohibited BRI from admitting any new clients/ students. The Court found that the plaintiffs
did not receive a copy of the report until it requested production of the report, and that
deputy counsel of OFC had stamped on the report one day after the plaintiffs had
requested the report. The Court also found that OFC also ?issued decisions which in effect
further reduce modes of treatment to such a degree that the BRI program became an empty
shell for those students Who require aversives as part of their treatment? and that such
decisions ?are, in effect, treatment decisions? (alteration in original). In explaining its
decision to allow the preliminary injunction, the Court found that ?the plaintiff students and
their parents will suffer irreparable harm if [the preliminary injunction] is not issued? and
that ?there is every likelihood that the plaintiffs will prevail at a hearing on the merits.?

In July 1986, after OFC appealed the preliminary injunction, a single justice of the Appeals
Court af?rmed the preliminary injunction.

In the months following the preliminary injunction, the parties negotiated and then executed
a Settlement Agreement that they then ?led with the Court on December 12, 1986. On
January 7, 1987, the Court (Rotenberg, J.) approved the Settlement Agreement, rejected the
objections to the Settlement Agreement made by the few objectors, and entered Findings of
Fact and Conclusions of Law in Support of Approval of the Settlement Agreement Pursuant
to Mass. R. P. 23 

Pursuant to Paragraph of the Settlement Agreement, ?[a]versive procedures? shall be
?permitted for use at BRI only when authorized as part of a court-ordered ?substituted
judgment? treatment plan for an individual client, when such client is either a minor or is
not able to provide informed consent thereto.? The Supreme Judicial Court 
explained in a later appeal ?that this provision clearly provides that the courts Were to make
the ultimate decision regarding individual treatment programs.? Judge Rotenberg
Educational Center. Inc. v. Commissioner of Mental Retardation, 424 Mass. 430, 443
(1997).

?Aversive procedures? are de?ned within Paragraph of the Settlement Agreement as: -
?all aversive procedures which are presently used or which may be proposed for use at BRI,
with the exception of the following: ignore; token ?nes; and any other
procedure found by the court after hearing not to require substituted judgment.? The

 

2 As speci?ed above, the Settlement Agreement together with Judge Rotenberg?s Findings of Fact and

Conclusions of Law shall collectively be referred to as the ?Consent Decree.?

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settlement Agreement further provides in Paragraph that in this agreement
shall preclude BRI from developing new reward and aversive procedures.?

Paragraph of the Settlement Agreement requires that ?[f]or all clients, BRI shall
propose those treatments which are the least intrusive, least restrictive modalities
appropriate to each client?s needs? and speci?es that ?physical aversive procedures, such as
spanks, pinches and muscle squeezes, and the restrained time-out shall be considered the
most intrusive, most restrictive forms of treatment.?

Paragraph of the Settlement Agreement provided that or before July 1, 1987, the
licensing responsibility for BRI shall be transferred from OFC to DMH in accordance with
an interagency agreement as authorized 19, Pursuant
to paragraph of the Settlement Agreement, BRI was to notify DMH upon 
acceptance of any client, and DMH was permitted to participate in temporary guardianship
proceedings involving BRI clients. Paragraph of the Settlement Agreement also
provided that prior to treatment plan hearings, a DMH clinician ?shall evaluate the client?s
clinical circumstances and shall provide the court with their recommendations on the issues
noted in [the preceding paragraph], as well as their assessment as to the client?s ability to
provide informed consent to treatment.?

Paragraphs and of the Settlement Agreement provided that Dr. John Daignault
Daignault?) would serve as general monitor of BRl?s treatment and educational
program for six months and would serve as arbitrator for disputes arising under the
Settlement Agreement,_with the right of court review of Dr. Daignault?s decisions. Later, on
April 13, 2006, the Court (LaStaiti, J.) modified this provision to provide for mediation
before the then-serving Receiver, Judge Lawrence T. Perera (Ret.) (?Attorney Perera?),
rather than arbitration before Dr. Daignault.

Paragraph of the Settlement Agreement restored license to operate residential
facilities and provided that the license ?shall not be revoked without the approval of the
Court or until such time as DMH licenses 

Section of the Settlement Agreement requires each party to ?discharge its obligations
under the terms of this agreement, in good fait 

Although the Settlement Agreement, as modified, continues to be in effect today, at the
time of its execution, the parties contemplated that it would be time-limited. Section of
the Settlement Agreement provides that the Court shall ?conduct a hearing at six-month
intervals in order to review the parties? adherence to the provisions of this agreement? and
that the Settlement Agreement would be ?automatically extended at the ?rst six month
review, unless the Court, upon motion by any party, orders otherwise.? Section further
provides that the Settlement Agreement ?shall automatically terminate at the second review
unless the Court, for good cause shown . . . orders otherwise.?

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The Settlement Agreement contains a single condition that would survive the termination of
the decree: Section requires BRI ?[u]pon termination of this agreemen to ?continue to
employ substituted judgment procedures as ordered by the court.?

In its Findings of Fact and Conclusions of Law in Support of Approval of the Settlement
Agreement Pursuant to Mass. R. Civ. P. 23 the Court (Rotenberg, J.) found the
Settlement to be ?fair, reasonable, adequate, and in the best interests of the class as a
whole?, found that ?the Settlement Agreement provides for extensive, ongoing supervision
of treatment program?, and noted that the Court has ?ongoing oversight . . . of the
terms of the Settlement Agreement.?

In 1986, electric skin shock was not among the physical aversives used at BRI. The
physical aversives used at that time included water spray, taste aversives, and muscle
squeezes.

After the Consent Decree, DMH drafted regulations concerning the use of Level 
treatment requiring that programs utilizing Level procedures be certi?ed by DMH,
whose authority was subsequently transferred to DMR.

On July 7, 1988, Dr. Daignault, in his capacity as monitor, filed a report with the Court in
compliance with the six?month review required by the Settlement Agreement. The report
stated that the parties were complying with the Settlement Agreement, but that RC had yet
to be licensed by DMR, which by that time had assumed responsibilities.

Also on July 7, 1988, the Court (Rotenberg, J.) extended jurisdiction over the Settlement
Agreement ?until further order of the Court.? The Court?s order noted that there were no
objections to the extension of jurisdiction.

On October 24, 1988, upon motion by DMR, the Court (Rotenberg, J.) issued an Order
allowing the substitution of DMR for DMH in the Settlement Agreement.

The Court did not, in 1988 or thereafter, issue any orders terminating the Court?s
jurisdiction over the Consent Decree.

In 1989, BRI first began using a commercially available electric skin shock device, the
Self-Injurious Behavior Inhibiting System as a physical aversive.

In 1990, RC began using the Graduated Electronic Decelerator a device that
administers skin shock. Currently, JRC utilizes the and the GED-4. The GED-3A
and the GED-4 function similarly except that the GED-3A delivers a current of 15.25
milliamps, while the GED-4 delivers a current of 41 milliamps.

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281991, RC replaced SIBIS with the GED. RC phased out the use of vapor sprays,
odors, and taste aversives a few years later.

On September 2, 1993, BRI (also known as JRC by this time; thus, the entity will hereafter
be referred to as ?led a Complaint for Contempt alleging multiple violations of the
Consent Decree by DMR. RC revised its contempt action twice.

On March 23, 1995, DMR decerti?ed JRC as a Level provider, effective July 1, 1995.
The following day, March 24, 1995, the Court (LaStaiti, J.) issued a preliminary injunction
prohibiting DMR from decertifying RC.

On October 6, 1995, after trial, the Court (LaStaiti, J.) entered a Judgment and Order on the
contempt action ?nding the Commissioner of DMR in contempt for violating the Consent
Decree for interfering with treatment plans of six individuals at JRC and not regulating
in good faith. The Court (LaStaiti, J.) also awarded attorney?s fees to JRC and
appointed a Receiver to ?administer, manage and operate DMR in all of its relationships
with JRC, its students and their families, and all who shall control all the funds and
revenues of DMR as they relate to RC, its students and their families.?

Following an appeal by DMR of the October 6, 1995 Judgment and Order, the SJ 
af?rmed the adjudication of contempt and concluded that the Receivership was justified.
However, the SJ also determined that the scope of the Receiver?s authority was too broad
in some respects and that the judge lacked the authority to order payment of attorney?s fees
in the circumstances of the case. The SJ remanded the matter to the Probate and Family
Court accordingly.

The October 6, 1995 Judgment and Order of the Court (LaStaiti, J.) resolving the contempt
action provided that ?the Receivership shall remain in effect no longer than necessary to
achieve the overall purposes set forth in this Order or until the Court concludes that DMR
would continue its progress toward substantial compliance with law as speedily and
effectively without direction of a Receiver and that no further public purpose would be
served by continuation of the Receivership.? DMR and its successor, DDS, remained in
Receivership from 1996 to 2006.

The October 6, 1995 Judgment and Order also provided that the Court ?retains jurisdiction
over this case until further Order.?

On September 4, 2003, the Court (LaStaiti, J.) incorporated into an Order a Stipulation
executed by the parties providing, inter alia, that the following regulatory functions would
no longer be the responsibility of the Receiver and would be returned to DMR: 
investigation and disposition of abuse complaints; substituted judgment proceedings,
including the appointment of DMR independent clinicians therewith; participation by
DMR in the review and development of individual support plans; review of request for

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proposals and award of contracts between DMR and approval for occupancy and? 
licensing of group homes predominantly occupied by adult mentally retarded students; 
review of restraint forms; and all other administrative functions.

In 2011, DDS amended its behavior modi?cation regulations ?rst adopted in 1987. The
amended regulations prohibit the use of Level interventions prospectively, except as to
students already receiving Level aversives pursuant to a Court-approved plan. However,
these regulations do not prevent JRC clients ?'om receiving Level aversive treatment
consistent with the terms of the Consent Decree if the treatment plan is already in existence.

Between 1986 and~2013, when the currently pending Motion to Vacate was ?led, none of
the parties ?led a motion to vacate the Consent Decree.

With the instant Motion to Vacate, Defendants ?led a Memorandum of Law in Support
stating two bases upon which the Consent Decree should be vacated: . . . [I]ntervening
changes in fact and law have rendered continued application ?no longer equitable?; and II. .
. . The [Consent] [D]ecree . . . has been ?satis?ed.?? Defendants argue that under Rufo v.
Inmates of Suffolk Countv Jail, 502 U.S. 367, 384 (1992), two signi?cant changes have
occurred since the entry of the Consent Decree that would warrant the Consent Decree
being vacated: (1) the purpose of the Consent Decree has been achieved; and (2) there is
now a professional consensus that the aversive interventions used at RC do not conform to
the accepted standard of care for treating individuals with intellectual and developmental
disabilities.

As stated above, a 44-day evidentiary hearing and closing arguments on this matter took
place between October 26, 2015 and October 17, 2016.

The parties ?led Proposed Findings of Fact and Conclusions of Law on October 7, 2016,
prior to closing arguments.

II. FINDINGS OF FACT

a. Achievement of Purpose of the Consent Decree/Defendants Compliance with the
Consent Decree

In the contempt action adjudicated in 1995, the Court (LaStaiti, J.) found that DMR
suppressed two certi?cation team reports favorable to including one that
recommended recerti?cation of JRC with respect to aversive procedures subject only to
minor conditions. Even though a DMR representative noti?ed JRC that DMR had accepted
the recommendations of the certi?cation team, DMR did not grant certi?cation to JRC.
Instead, without reading the report, the DMR Commissioner and others at DMR embarked
on a ?regulatory barrage of RC that was to last two years.? uche Rotenberg Educational
Center, Inc. v. Commissioner of Mental Retardation, 424 Mass. 430, 437 (1997).

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On August 6, 1993, DMR wrote to JRC granting ?interim certi?cation? for a 25-day period
but asserting that the department had found ?continued and repeated noncompliance [by
with the requirements of [department] regulations.? Judge Rotenberg Educational
Center Inc., 424 Mass. at 437 (alterations in original). JRC requested a meeting, but DMR
representatives ?declined to meet with RC if the court monitor was to participate.? at
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On August 31, 1993, DMR sent JRC a letter citing ?nther violations and stating that 
certi?cation was contingent on the condition that RC devise ?an emergency plan to
address the funding and logistics of any unexpected . . . situations which JRC deemed-were
beyond its capacity to address? and that RC ?must provide evidence of the ?mder?s ability
to immediately provide all needed services for such clients so as to ensure that the client is
not substantially endangered.? Judge Rotenberg Educational Center, Inc., 424 Mass. at 438.

Despite an agreement reached with the court monitor that JRC would not have to comply
with this condition, DMR then ?mailed the August 6 and August 31 letters to all of 
?mding agencies.? Judge Rotenberg Educational Center, Inc., 424 Mass. at 438. The Court
(LaStaiti, J.) found ?that the mailings were made in bad faith with the intent to interfere
with relationships with its funding agencies.? I_d. at 438. DMR also sent JRC a letter,
with a copy to funding agencies, stating that 14 abuse investigations arising from
?quite serious? allegations were pending against JRC. at 439.

In addition, the Court (LaStaiti, J.) found in adj udicating the contempt action that DMR had
instituted regular ?Tuesday Morning Meetings,? at one of which ?a plan was developed . . .
to disrupt the operations of RC by every conceivable means, including interfering with the
?nancial operations of JRC and disrupting relationships with funding agencies and
parents.? Judge Rotenberg Educational Center. Inc., 424 Mass. at 43 9-40. The plan of
action, as found by the Court (LaStaiti, .), included the following:

a. DMR hired a purportedly ?independent? review team that was not independent and
whose head ?had previously signed a document entitled ?Call to Action by Arrmesty
International,? which equated the use of aversives with political torture.? at 440;

b. DMR claimed that prior review reports, essentially favorable to JRC, were not
suf?cient, when, in fact, DMR had not seen the reports;

0. Without notifying JRC, DMR held a telephone conference with a New York funding
agency. Thereafter, ?the New York agency wrote to the parents of all New York
patients at RC and told them that alternative placements for their children would be
offered in New York.? Li. at 441;

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d. DMR required RC to ?rewrite all of its behavior modi?cation treatment plans
(approximately ?fty-?ve) and allow two new and physicians to conduct
independent and medical evaluations on every I RC patient (approximately
sixty patients) within eighty days.? at 441. However, ?[t]he commissioner did not
read the reports of these and not one of the evaluations recommended
the discontinuation of Level [aversive] treatment procedures.? Lt;

e. DMR required JRC to discontinue Level aversive treatment for six clients. Such a
requirement, the Court found, contravened the provision in the Settlement Agreement
?clearly provid[ing] that the courts,? not DMR, ?were to make the ultimate decision
regarding individual treatment programs.? I_d. at 443 and

f. JRC requested mediation, but DMR refused to engage meaningfully in mediation.

As stated above, the Judgment and Order entered by the Court (LaStaiti, J.) on the contempt
action found the Commissioner of DMR in contempt for violating the Consent Decree for
interfering with treatment plans of six individuals at RC and for not regulating in
good faith.

During the court-ordered Receivership from 1996 to 2006, the Receiver oversaw two
reviews and certi?cations of Level treatment programs. The certi?cations
occurred in 1998 and 2004. 

The team conducting the review that led to 1998 certi?cation was headed by Philip
Levendusky, (?Dr Levendusky?).

Dr. Levendusky has a B.A. in from UMass-Boston, and a master?s degree and
in clinical from Washington State University. After receiving his 
Dr. Levendusky went to work at McLean Hospital (?McLean?), where he has remained for
more than 40 years. Currently, the is Senior Vice President for Business Development and
Communication at McLean, and he also serves as the Chair of the Department
and the Co?Director of Training. In addition, Dr. Levendusky is an Associate Professor of
in the Department of at Harvard Medical School. 

In 1998, after adopting the report prepared by the certi?cation team chaired by Dr.
Levendusky, Commissioner, Gerald J. Morrissey, Jr., granted JRC a two-year
certi?cation for use of Level interventions subject to certain conditions, including, inter
alia, that JRC ?consult a medical records expert to assist in the recorded data
in a form that is meaningful and accessible to an outside reviewer, and to create a format for
periodic review and assessment of each student?s progress,? conduct quarterly internal
reviews for all students receiving level interventions, and conduct annual revieWs
performed by independent clinicians for all students who have received level 
interventions for at least three years.

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Dr. Levendusky did not serve on the certi?cation team handling the 2003 review that led to
2004 certi?cation because of outside con?icts. Effective January 1, 2004,
Commissioner Gerald J. Morrissey, Jr. granted RC a two-year certi?cation, again subject
to certain conditions, including, inter alia, that RC integrate various documents relating to
each student into a single behavioral plan, and that the integrated behavioral plans be more
individualized and re?ect in greater detail that they are consistent with the regulations.

Elin M. Howe (?Commissioner Howe?) was appointed Commissioner of DDS in 2007. At
all times relevant to this case, she reported to Jean McGuire (?Assistant Secretary
McGuire?), Secretary of the EOHHS. Assistant Secretary McGuire reported to the
Secretary of EOHHS, JudyAnn Bigby, M.D. (?Secretary Bigby?).

In August 2007, shortly after Commissioner Howe?s appointment, an incident occurred at
JRC in which a former RC resident made a series of phone calls to a RC residence, falsely
represented himself to be a member of staff, and told the residential staff to
administer dozens of electric shocks to two JRC students. The staff then entered the
bedroom of the two students and began administering GED applications while the students
were asleep. The two students received more than 100 total combined GED applications.
The staff also used on a third JRC student a four-point restraint board, which was not
authorized by his treatment plan. JRC and properly reported to the appropriate
entities what had occurred. DDS was notified the day following the incident.

Several entities investigated the August 2007 incident. A report prepared by Hon. Isaac
Borenstein an Independent Monitor, found that ?serious mistakes by members of
JRC staff, as well as some unclear policies and procedures on the part of led to the
failure to ensure the students? safety. The report issued by DEEC found that one RC staff
member had been physically abusive to two students and that RC staff were neglect?ll in
three students? care. The DEEC report also noted that two of the six RC staff involved in
the incident had worked a triple shift, three of the staff had worked a double shift, and four
of the staff had been employed by JRC for fewer than three months.

On February 26, 2008, DDS sent to JRC an action plan in reSponse to the August 2007
incident requiring RC to, inter alia, ensure that the staff administering the GED has
actually seen the targeted behavior, prohibit shifts ?'om being staffed by exclusively new
employees, and follow all recommendations/conditions included in the investigation reports
relating to the incident. JRC complied with action plan.

Destruction of video footage related to the August 2007 incident during the course of the
investigations surrounding the incident led to the indictment and, ultimately, the resignation
of then-serving Executive Director, Dr. Matthew Israel Israel?). At his
arraignment on May 25, 2011, Dr. Israel agreed to a 5-year pre-trial probation, to resign
from his position as Executive Director of JRC, and to be prohibited from working for JRC.

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During 2007, the then-serving Level Certi?cation Team was conducting its review of
JRC. This was the ?rst post?Receivership Level Certi?cation Team. Dr. Levendusky
was re-appointed to the Team and served as its chair. The Team issued its ?Report on the
Application of for Level Behavior Modi?cation Certi?cation?3 on December 17,
2007, and Commissioner Howe accepted all recommendations and conditions of the Team.
Commissioner Howe granted to RC a one-year certi?cation subject to the eight conditions
contained in the Report.

The eight conditions contained in the 2007 Level Certi?cation Team Report were as
follows:

1. RC will develop a single,.integrated plan for each student subject to Level 
interventions, including relevant medical information. It is recommended that RC consult
with a medical records expert to accomplish this. JRC will submit a sample of such an
integrated plan to DMR for review. All subsequent reviewers, such as the court, Peer
Review Committee, Human Rights Committee, Independent Clinicians, Guardians, and
applicable governmental agencies should have access to this integrated record.

2. JRC will limit the number of problem behaviors included within any single category in
behavior plans g. self?destructive, health dangerous, etc.) and will also develop a
protocol designed to limit the frequency with which behaviors are re-categorized for
purposes of changing the treatment response. RC will provide DMR with a copy of the
protocol.

3. JRC will continue its efforts to make its integrated behavioral plans more

individualized in the following respects: include a rationale for each Intervention
derived from a comprehensive functional analysis, including an analysis of contextual
factors that may be impacting a behavior; include conditions under which an application
for an intervention will be terminated; include assessment of the feasible treatment
alternatives and its ultimate conclusions for the treatment choice; evaluate a broader
range of non-aversive alternative treatments, including the use of more varied preventive
interventions and teaching skills likely to reduce the need for engaging in problem
behaviors; and individualized criteria for plan revision and termination. Behavioral
plans should not include generic interventions that are not speci?cally intended for use with
a particular individual. . . . To monitor compliance with this condition, RC shall
submit to DMR a sample of ?fteen behavior plans each quarter for review.

4. RC will continue its quarterly interval review for all students receiving Level 
interventions. RC will use its excellent data collection methods to modify plans to reduce
the use of aversives wherever possible. In any event, JRC will include within its quarterly

 

3 Such reports from subsequent years shall hereafter be referred to as ?Level Certi?cation Team

Report? or ?Certi?cation Team Report.?

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reports an individualized rationale for any recorded increase or decrease in the effectiveness
or use of the Level intervention, and will articulate an individualized rationale for
continuing the use of the Level interventions until the next quarterly review. All future
plans will be expected to comply With this condition.

5. RC will utilize its computer method of charting negative behaviors to measure
educational goals as a proxy for quality of life assessment and will design a similar system
for tracking replacement behaviors.

6. RC will structure a discharge plan for students who are required to leave RC at a
particular time g. due to aging out of a funded program) that involves fading the use of
the GED in favor of rewards and consequences that occur naturally in the outside. . . . To
facilitate monitoring of compliance with this condition, JRC must submit to DMR
on a quarterly basis the behavior plans of all-students scheduled to leave JRC. JRC must
also submit on a quarterly basis the behavior plans of all students for whom I RC has been
?fading? the use of aversives, whether those students are scheduled for discharge or not.

7. RC must either include a rationale related to the analysis of the function of the behavior
and document the data that shows the direct link between the intended behavior to
consequate and direct harm?il outcomes (that leads them to this conclusion), or it must
utilize less restrictive interventiOns to address the behavior. plans must re?ect in
greater detail that they are consistent with the regulatory requirement that Level 
interventions may only be employed ?to address extraordinarily dif?cult or dangerous
behavioral problems that signi?cantly interfere with appropriate behavior and/or the
learning of appropriate and useful skills and that they seriously hamled or are likely to
seriously harm the individual or others,? in accordance with 115 CMR 
Whenever JRC proposes to utilize a Level Intervention for what appears to be a behavior
that is less than required by the above standard, it must make a clear, data-based showing of
the necessity to do so.

8. Pursuant to 115 C.M.R. the Commissioner will appoint one or more persons to
join Peer Review Committee and Human Rights Committee to ensure performance

by such committees of their review responsibilities consistent with the requirements
established by 115 CMR 5.14.

Some of the above conditions in the 2007 Level Certi?cation Team Report, those
related to inadequate treatment plans and inadequate functional behavioral assessments,
dated back to the 2003 and 1998 Level Certi?cation Team Reports. The Certi?cation
team determined that RC had not complied with the requirement in the 2003 Report for
JRC to structure a discharge plan for students who will be leaving RC. The Level 
Certi?cation team outlined in the 2007 Level Certi?cation Team Report new concerns
as well, including decision to consequate with Level aversives behavior that had
not occurred prior to the student?s admission at failure to teach replacement

Page 13 of 50

 

 

60.

61.

62.

63.

64.

65.

66.

behaviors to take the place of the behaviors targeted for Level aversive treatment; 
failure to provide a suf?cient basis for its use of Level aversives with less severe
behavior that is an antecedent to very severe behavior; and failure to have each
incoming student assessed for medication needs.

Dr. Levendusky testi?ed credibly that the 2007 Certi?cation Team generally found that

RC lacked documentation to support all of the progress it was making on alternatives and
less restrictive interventions than the GED. Dr. Levendusky also noted that the 2007
Certi?cation Team felt at that time that JRC needed to rely less on generic templates and
rationales and focus more on making treatment plans speci?c to each student.

On January 10, 2008, Secretary Bigby sent a memo to then Governor Deval Patrick
(?Governor Patrick?) stating that she is ?personally outraged by the continued practice of
electric skin shock therapy in the Commonwealth.? Also in the memo, Secretary Bigby
recommended the creation of ?a special commission to investigate the medical ef?cacy and
regulatory options for behavioral modi?cation therapy in general and GED speci?cally.?

In early 2008, Assistant Secretary McGuire, on behalf of Secretary Bigby and Governor
Patrick, formed a clinical advisory group regarding the use of aversives.

Shortly before February 8, 2008, Assistant Secretary McGuire reached out to Jean Sullivan
(?Attorney Sullivan?), an attorney at the University of Massachusetts Medical School
(?UMass Medical?), and indicated that she was looking for a and 
with expertise in behavioral science to join this advisory group.

On February 8, 2008, Attorney Sullivan sent an e-mail to Charles Hamad, 
Hamad?), Director for Center for Excellence in Developmental Disabilities, Research and
Service UMass Medical, asking him, as well as two other UMass Medical clinicians, for
their input and inviting them to join the group. The group also included several state agency
clinicians and administrators, including DMR Dr. Alfred Bacotti 
Bacotti?), Dr. Christopher Fox, and Richard Longo.

The clinical advisory group met twice during the spring of 2008, each time convened and
led by Assistant Secretary McGuire.

On December 8, 2008, Assistant Secretary McGuire sent a memo to Secretary Bigby
following the completion of the policy review. The summary of the memo stated that the
?lack of scienti?c or clinical practice support for [contingent aversive] interventions, the
signi?cant administrative challenges they present, the lone status of the state in providing
safe harbor to a particular aversive practice and the evolution of well-documented
ecological and positive behavior management techniques all argue for a major change in
policy in the state.? .

Page 14 of 50

 

67the primary souICes of information for Assistant Secretary McGuire?s December 8,
2008 memo was a July 2008 memo titled ?Review of Clinical Practice Related to Aversive
Interventions? that indicated it was from Dr. Hamad (hereafter referred to as ?the Hamad
Memo?).

Dr. Hamad is a licensed with a in child and developmental 
and serves as associate professor of pediatrics at UMass Medical.

The Hamad Memo described its task as follows: ?to discern current professional and
community standards for treating children and adults who have signi?cant behavior
disorders, including current practice standards for the treatment of severe behavior in
persons with developmental disabilities. We also sought to establish the current state of the
art with regard to the role, if any, for the use of aversive procedures such as contingent
electric shock.?

Dr. Hamad consulted three national experts as well as licensed with
experience working with individuals served by DMR. The national experts, Dr. Nirbha
Singh, Dr. Edward Carr Carr?), and Dr. Richard Foxx Foxx?), were not
identi?ed in the memo.

In his initial email to the experts, Dr. Hamad indicated that ?[Assistant Secretary]
McGuire?s of?ce is . . . considering whether or not to propose a legal ban on the use of
contingent aversive procedures used to control and/or treat individuals with developmental
disabilities and behavior disorders.?

Dr. Hamad interviewed some of the experts, and some of the experts declined to be
interviewed and instead sent a written response.

No individual from JRC, including students, their guardians, or RC clinicians, was
contacted as part of the policy review. Likewise, neither Dr. Lewis Klebanoff 
Klebanoff?) nor Dr. Susan Shnidman Shnidman?), the independent licensed
who are charged with evaluating and preparing reports on JRC students, were
contacted as part of the review. 

According to the Hamad Memo, the national experts ?strongly suggested that the use of
contingent aversive procedures is no longer an acceptable treatment or management
approach for people with intellectual disabilities.? When asked about possible scenarios
where aversive treatment is warranted, ?Five of the six indicated there were no such
exceptions. . . . One expert did suggest, however, that the use of contingent electric shock
might conceivably be needed, but only for a very, very small number of exceptional cases
where the individual?s behavior was so extreme as to be life threatening.?

Page 15 of 50

 

75prior draft of the Hamad Memo was titled ?Policy Review of Aversive Interventions? and 
indicated that the memo was from Dr. Hamad and Attorney Sullivan.

On July 18, 2008, Attorney Sullivan sent the draft version of the Hamad Memo to Assistant
Secretary McGuire. On July 27, 2008, Assistant Secretary McGuire responded by email to
Attorney Sullivan and Dr. Hamad with a redlined version of the draft Hamad Memo and an
email explaining her changes.

Although Assistant Secretary McGuire indicated in the email accompanying the redlined
version that she ?de?nitely [didn?t] want to simply be putting words into your mouths,?
Assistant Secretary McGuire made extensive substantive changes to the draft Hamad
Memo. In fact, the conclusion summary sentence was authored entirely by Assistant
Secretary McGuire and stated as follows: ?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.?

In addition, Assistant Secretary McGuire added a sentence stating that ?[t]he extensive
literature review conducted by EOHHS and reviewed by our staff indicates that intervention
research using aversive interventions peaked over 20 years ago, had small participant pools
and uneven results even at that time, and in recent years is virtually non-existent, leaving
essentially no theoretical or practice base indicative of use or ef?cacy.?

Assistant secretary McGuire also removed a sentence that provided details about an
opinion held by one of the national experts, namely, that ?the number of persons who
conceivably might require such treatment approach was so small that one program for the
entire nation would be more than suf?cient to meet any potential need.? Assistant Secretary
McGuire explained in the email accompanying her redlined version that she had removed
this sentence in part because it ?looked like a rationale for keeping one place open in the
country (which would be the one we already have)?

Finally, Assistant Secretary McGuire added language purporting to summarize the opinion
of one of the national experts, even though she had no personal knowledge of that
interview. The language Assistant Secretary McGuire added included the following: ?When
pressed about the number of individuals he had treated with electric shock and shown
behavioral improvement, he only recalled one. Interestingly, this expert otherwise indicated
that most other noxious and painful stimuli were not effective for behavioral interventions
because of the inability to calibrate them with the precision provided by electric shock
methods.?

Attorney Sullivan suggested in a July 28, 2008 email to Assistant Secretary McGuire that
?the memo . . . be restructured to be Findings of the EOHHS policy review group, as
opposed to a [UMass Medical] memo.? Attorney Sullivan indicated that she didn?t ?think it

Page 16 of 50

 

82.

83.

84.

85.

86.

needs to be a [UMass Medical] ?product? or is 'even appropriately couched as such? because
?[y]ou or your staff or agency senior of?cials were all involved in reaching these results.?

Attorney Sullivan agreed with the changes made by Assistant Secretary McGuire. Dr.
Hamad accepted all of Assistant Secretary McGuire?s changes and the ?nal version of the
Hamad Memo went out on July 29, 2008. The ?nal version of the Hamad Memo had
Attorney Sullivan?s name removed from the ?from? line.

The Court ?nds that the Hamad Memo, which served as the basis for Assistant Secretary
McGuire?s December 8, 2008 memo to Secretary Bigby, was shaped signi?cantly by
Assistant Secretary McGuire herself and did not represent an independent, objective review
of the current scienti?c and clinical practice support for the use of aversives.

During 2008 and 2009, a Level Certi?cation Team comprised of the same members as
the 2007 Level Certi?cation Team conducted its review of application for
certi?cation. Dr. Levendusky remained the chair of the Team.

The 2009 Level Certi?cation Team Report was issued on April 27, 2009. Shortly
thereafter, on May 4, 2009, Commissioner Howe granted JRC a six?month certi?cation
subject to eight conditions contained in the Report. Commissioner Howe also accepted the
2009 Level Certi?cation Team?s recommendation that because of the ?remain[ing]
concerns regarding the broad application of the Level interventions, a lack of speci?city
in de?ning target behaviors, the grouping of unrelated behaviors within one treatment
category, and other problematic issues,? that the Team conduct ?three-month and six-month
follow up reviews of a representative sample of RC Level behavior plans and the
results of their implementation.?

The 2009 Level Certi?cation Team recommended (and Commissioner Howe accepted
the imposition of) eight conditions, of which the ?rst four were carried forward from
portions of the 2007 Level Certi?cation Team Report. Those four restated conditions
were as follows: 

1. JRC must revise the behavior plans for grouping behaviors to consequate according to
their function as derived from the functional behavioral analysis and produce a separate
protocol aimed at decreasing the number of times behaviors are moved in and out of
categories.

2. RC must revise the behavior plans to include more individualization and relevant data.
All behavioral plans should be tailored to the speci?c needs of individual students and not
re?ect any generic theoretical bias. Further, RC should give additional consideration to
obtaining Court approval for the use of Level II interventions which, among other things,
might be useful in interrupting ?chains? of behavior before they escalate to a dangerous
level. To monitor compliance with this condition, I RC shall continue to submit to

Page 17 of 50

 

 

87.

DMR a sample of ?fteen behavior plans each quarter for review. In those cases where a
student has been diagnosed with a or neurological de?cit, RC must document in
detail the results of its evaluation and the results to date of any medications
prescribed.

In addition, in these same cases if the individual has a court approved plan to use the
GED, JRC must submit quarterly a report by the treating clinicians explaining how they are
differentiating or neurologically driven dangerous behaviors from other
targeted behaviors.

3. RC will include in its next set of quarterly reports, and all quarterly reports thereafter, an
individualized rationale for any recorded increase or decrease in the effectiveness or use of
the Level intervention, and will articulate an individualized rationale for continuing the
use of the Level interventions until the next quarterly review. All future plans will be
expected to comply with this condition. JRC will structure a discharge plan for students
who are required to leave JRC at a particular time g. due to aging out of a funded
program). In these cases the plans should include consideration of aftercare plans, including
where the student will live and how I RC predicts he or she can hold onto any gains they
have made. In cases where students are not required to leave, JRC should continue the trend
of fading as soon as safely possible. To facilitate monitoring of compliance with
this condition, RC will submit to DMR on a quarterly basis the behavior plans of all
students scheduled to leave I RC. JRC must also submit on a quarterly basis the behavior
plans of all students for whom JRC has been ?fading? the use of aversives, whether those
students are scheduled for discharge or not.

4. JRC will include a report on replacement behaviors in each behavioral treatment plan
within 90 days. treatment plans and the quarterly reports will contain not only a list
of replacement behaviors to be taught, but an explanation of the nexus between a particular
replacement behavior and a targeted behavior. This discussion must include a separate
rationale for the selection of each replacement behavior.

I RC must include in every behavior plan that contemplates Level interventions the data
that shows the direct link between the intended behavior to consequate and direct harmful
outcomes (that leads them to this conclusion), or it must utilize less restrictive interventions
to address the behavior. 115 CMR Whenever I RC proposes to utilize a Level
Intervention for what appears to be a behavior that is less than required by the above
standard, so?called minor behaviors, it must make a clear, data-based showing of the
necessity to do so.

The other conditions recommended by the 2009 Level Certi?cation Team recommended
(and accepted by Commissioner Howe) were as follows:

Page 18 of 50

 

88.

89.

90.

91.

 

5. GED Device Review: . . . JRC will have both the GED and GED 4 devices reviewed by

outside experts with experience in medicine and engineering. RC shall obtain from these
experts a written report on the functioning and safety of the devices, and will submit that
report to the Certi?cation Team. This report should include a review of the ?mctioning and
safety of the devices providing the application, the triggering devices (both for one
application and multiple automatically triggered devices, or devices otherwise not manually
triggered) and the mechanisms used to distribute the current to random devices and will
submit that report to the Certi?cation Team.

6. Peer Review: JRC will immediately begin using the sample checklist, or any revision
approved by DMR, for each plan reviewed by the Peer Review Committee. The Peer
Review Committee will meet with the ?'equency required by the regulation, 115 CMR



7. Human Rights Committee function: RC will continue to work the Department?s Of?ce
for Human Rights to come into compliance with the responsibilities of that committee. To
this end, I RC must schedule two-hour training for their Human Rights Committee to be
presented by the Of?ce for Human Rights. The Human Rights Committee will meet with
the frequency required by the regulation, 115 CMR 3 .09(1 

8. Limitation of Movement: RC will ensure that all devices used as an intervention or as a
component of or support to an intervention in a behavior modi?cation plan be clearly
articulated, including the conditions for use.

The 2009 Level certi?cation Team Report indicated that the team determined that JRC
was in compliance with respect to the 2007 condition requiring the development of a single,
integrated plan for every student receiving Level treatment.

Dr. Levendusky testified credibly that the 2009 Team recommended a six-month
certi?cation for RC because they felt RC was not making progress rapidly enough and
many of the issues went back several years. The Team recommended that a compliance
review be conducted in 90 days because they had eXpectcd to see more progress from RC
by the time of this review.

The 2009 Level Certi?cation Team issued its 90-day report on September 27, 2009 in
which it found ?substantial compliance? on the part of JRC. On October 2, 2009,
Commissioner Howe forwarded the Level Certi?cation Team?s September 27, 2009
report to IRC, notifying JRC that-she accepted the Team?s ?determinations of ?substantial
compliance?? and granting JRC the right to continue Level treatment ?subject to a six
month ?nal review.?

The 90-day report of the 2009 Level Certi?cation Team issued on September 27, 2009
summarized the Team?s fmdings as follows: ?In summary, the Certi?cation Team was

Page 19 of 50

 

92.

93.

94.

95.

96.

97.

impressed by the progress demonstrated by JRC in the conditions reviewed and its staff?s
productive discussion of the feedback offered by the Certi?cation Team following its site
visit. Especially encouraging was . . . administration?s declared willingness to further
improve treatment documentation by including a behavioral treatment plan that will make it
possible to bring their comprehensive treatment efforts into a more useful and easily
accessible summary? (emphasis added).

Secretary Bigby echoed the compliments of the 2009 Level Certi?cation Team in a
memo to Governor Patrick dated January 5, 2010. Secretary Bigby noted that ?[s]tate
agency monitors, who continue to visit RC frequently, report that RC staff have been very
cooperative and improvement in the program is evident.? Secretary Bigby also stated in the
memo that all accounts, the situation at JRC is as good as it has ever been? and that
there had been ?documented improvements in the care provided at 

The January 5, 2010 memo from Secretary Bigby also noted that the percentage of JRC
clients approved for aversive treatment had declined from 60% in 2008 to 49% as of
January 2010, that GED application to new clients was down ?om 100% in 2001 to 12% in
2009, and that 15% of 106 individuals approved for aversives had been completely faded
?om aversive treatment, while another 32% were in the process of fading.

On May 21, 2010, Assistant Secretary McGuire sent an email to Commissioner Howe and
others reporting on a meeting that Governor Patrick?s Chief of Staff had with
representatives of groups philosophically opposed to aversive treatment. In the email,
Assistant Secretary McGuire reported that the group representatives recommended that
DMR ?make every use of the upcoming certi?cation to assure that we are tough on 
responsive to those areas where he [sic] continues to be non-compliant or has slipped.?

Dr. Levendusky was again chair of the 2010 Level Certi?cation Team (?2010 Team?)
that issued a report on July 8, 2010 (?2010 Report?). The 2010 Team also included three
other members who had served on prior certi?cation teams.

Although Dr. Levendusky initially testi?ed that he did not recall having any involvement in
the 2010 Report after June, 22, 2010, including how any changes to the 2010 Report were
drafted and by whom, Dr. Levendusky later testi?ed on Day 20 of the hearing that after
reviewing his calendar, he now realized that he had email exchanges with Attorney
Marianne Meacham after that date. Dr. Levendusky does not bill for emails, so the fact that
emails were exchanged would not have, and did not, appear on his billing records. The
Levendusky-Meacham email exchanges are discussed in further detail below.

On June 23, 2010 at 9:39 am, Attorney Meacham sent an email to Dr. Levendusky and the
other 2010 Team members enclosing the 2010 Report for Dr. Levendusky?s ??nal review
and signature? and indicating that all of Dr. Levendusky?s ?edits were accepted and a ?nal
proofread was done.? In the version of the report attached to the email, the Executive

Page 20 of 50

 

98.

99.

100.

101.

102.

103.

 

Summary included the following language: ?As a result of its recent review, the [2010
Team] ?nds that RC is still in substantial compliance with the prior Conditions, and
continues to make progress in reducing the use of Level interventions . . . The
Executive Summary section also stated the following: ?As a result of its review of 
Level 111 program, the [2010] Team recommends that RC be issued one year Certi?cation
with Conditions.? 

Commissioner Howe acknowledged in her testimony that it was not Attorney Meacham?s
responsibility to suggest ?ndings or recommendations to the certi?cation team on her own
and that Attorney Meacham only did so ?in discussion with? Commissioner Howe. 

Also on June 23, 2010, at 12:16 pm, Dr. Levendusky responded to Attorney Meacham?s
email in which he suggested that language be included regarding ?the [2010 T]eam?s
monitoring of JRC compliance and/or expect[ing to produce ?corrective action plans?
to address[] the conditions within some targeted time frame g. 180 days).?

Attorney Meacham replied to Dr. Levendusky?s June 23, 2010 12:16 pm email at 12:53 pm,
stating that Attorney Meacham and Commissioner Howe agreed with Dr. Levendusky and
that Commissioner Howe ?would like short 60 days or less periods [to] correct
previously identi?ed conditions? and ?wants timeframes on all the conditions.?

Commissioner Howe, Attorney Meacham, and another DDS attorney worked on a revised
draft of the 2010 Report, and Attorney Meacham sent the new redlined version to three of

the four team members, including Dr. Levendusky, on June 25, 2010 at 2:58 pm.

The June 25, 2010 2:58 pm version of the 2010 Report removed the language stating that
JRC was ?in substantial compliance with the prior Conditions? and replaced it with
language stating that continues to make progress in the areas previously identi?ed,
but there are [sic] still signi?cant improvement needed.? The email accompanying the
redlined version did not indicate that the ?substantial compliance? ?nding had been
removed, although it did identify other areas of the report that had been revised.

Although Dr. Levendusky testi?ed on Day 20 of the hearing that he agreed with the
removal of the ?substantial compliance? language and that there was no dissent from any of
the team members, the Court does not credit this testimony and is not convinced he was
aware of the change at the time it occurred. The email containing the ?rst version in which
the ?substantial compliance? language was removed was not emailed to all four team
members, and there was no evidence that that the team members discussed the deletion of
the ?substantial compliance? language. The Court credits Dr. Levendusky?s testimony that
the 2010 Team did, in fact, ?nd that RC was in substantial compliance with the prior
conditions.

Page 21 of 50

 

104.

105.

106.

107.

108.

109.

During his testimOny on Day 20 of the hearing, Dr. Levendusky denied that the deletion of
the ?substantial compliance? language was a major change. However. Dr. Levendusky also
acknowledged that if a ?substantial compliance? ?nding is the standard for re-certi?cation,
then the removal of the ?substantial compliance? language is a change of substance.
Commissioner Howe admitted in her hearing testimony that the ?substantial compliance?
language had to be removed in order not to grant JRC a one-year certi?cation and that
under DDS policies, if there was a ?nding of substantial compliance, RC would be granted
a certi?cation lasting at least one year. Moreover, JRC had consistently received a
?substantial compliance? determination in prior certi?cation team reports and in all prior
instances, the Commissioner of DDS granted Level certi?cation to JRC.

In the June 25, 2010 2:58 pm version of the report, Attorney Meacham deleted a portion
of the prior version of the report that reported on an interview with a ?consultant who
oversees the annual ?clearance? process for RC with the US. Food and Drug
Administration The deleted section stated that according to the consultant, RC
does not need to obtain FDA approval for list the devices because it does not intend
to sell them; however, I RC continues to keep current with this clearance process.?

In addition, the June 25, 2010 2:58 pm version of the report implemented Dr.
Levendusky?s suggestion regarding corrective action plans, but required RC to submit a
written corrective action'plan describing how it would comply with the conditions within
10 working days from receipt of the report, instead of the 180 days suggested by Dr.
Levendusky in his June 23, 2010 email. Dr. Levendusky admitted in his testimony that the
lO-day suggestion originated from DDS. In addition, this version contained timeframes for
submitting various documents relating to the speci?c conditions, predominantly between 30
and 60 days from receipt of the report.

In a June 28, 2010 email to Assistant Secretary McGuire, Commissioner Howe says she
sent to the 2010 Team the prior Friday June 25, 2010 ?the last draft of the report, including
the plan of correction that Marianne [Meacham], Kathleen [Gallagher], and I worked on.?

Dr. Levendusky incorporated further changes to the draft 2010 Report and sent a revised
version to Attorney Meacham on June 28, 2010 at 6:21 pm. Among other changes, Dr.
Levendusky extended the deadline for submitting a corrective action plan describing how
JRC would comply with the conditions to 30 working days after receipt of the report. In
addition, JRC would have 45 days from receipt of the report to implement a corrective
action plan for conditions previously identi?ed, and the revised version extended the
deadlines for full compliance within the individual conditions.

In a further revised version sent from Attorney Meacham to Dr. Levendusky only (and to
no other members of the 2010 Team) on July 1, 2010 at 11:41 am, among other changes,
the turnaround time for the plan of correction describing its plan to come into compliance
was shortened to 14 working days, and JRC would have 45 days to submit a written report

Page 22 of 50

 

110.

111.

112.

113.

114.

115.

116.

on the Status of compliance. Attorney Meacham indicated in the email that the changes
were made ?[p]er our Attorney Meacham and Dr. Levendusky?s] conversation.?

A few hours later on July 1, 2010, via two emails at 1:51 and 1:52 pm, Attorney Meacham
informed Dr. Levendusky only (and no other members of the 2010 Team) that an
?important change? was made on the Executive Summary section. The change was the
removal of the recommendation that RC be granted a one-year certi?cation for its use of
Level aversive treatment.

The removal of the recommendation for RC to receive a one-year certi?cation originated
with DDS. Dr. Levendusky testi?ed credibly that at the time, he was not considering
changing the recommendation for a one-year certi?cation.

- Although Dr. Levendusky testi?ed at the hearing that the removal of the one-year

certi?cation was consistent with the evolution and ?ne?tuning of the 2010 Report, he
admitted that the reduction of the length of certi?cation from a one-year certi?cation to a
14-day certi?cation was a ?major change,? and there was no evidence at the hearing that
this major change was discussed among the 2010 Team members. The Court infers, due to
the short periods of time between drafts, the fact that no team members other than Dr.
Levendusky were copied on the emails discussing the change to the length of the
certi?cation period, and the fact that Dr. Levendusky admitted at the hearing that he did not
independently email any team members regarding the changes to the report made after June
22, 2010, that the remainder of the 2010 Team was not consulted on this change.

In addition, Dr. Levendusky credibly testi?ed that the process resulting in the 2010 Report
was the ?rst time a DDS representative suggested a change to the certi?cation time ?ame.

At 4:42 pm on July 1, 2010, Attorney Meacham emailed to Dr. Levendusky only (and to no
other members of the 2010 Team) a further revised version of the report in which she added
a provision that if the correction action plan (still due within 14 working days) was
approved by Commissioner Howe, RC must then submit to Commissioner Howe a written
report describing its progress implementing the corrective action plan within 45 days, and
every 45 days thereafter, until the corrective action plan was fully executed.

Condition 3 within the July 1, 2010 4:42 pm version of the report required I RC to submit
the ?rst ten corrected functional behavior assessments within 45 days. Dr. Levendusky
admitted at the hearing that compliance with this and other time-sensitive conditions would
require signi?cant effort on the part of RC and its clinicians.

Dr. Levendusky replied to Attorney Meacham?s email shortly thereafter at 5:52 pm on July
1, 2010 praising the revised version of one hour earlier.

Page 23 of 50

 

117. Dr. Levendusky characterized the 14-day and 45-day deadlines contained in the report as
being aimed at improving addressing the outstanding issues. The Court does not
doubt that Dr. Levendusky understood the deadlines in this way. However, in a July 2, 2010
email from Attorney Meacham to Assistant Secretary McGuire, Attorney Meacham
summarized the substance of the 2010 Report and reported that JRC will be ?operating.
under an extension of their certi?cation which could be pulled the
response isn?t suf?cient.? This email demonstrates that at least Attorney Meacham, and
possibly others within DDS, viewed the deadlines as potential opportunities to terminate
certi?cationfj'

118. It is also notable that the written reports to be submitted by JRC every 45 days were to go to-
Commissioner Howe for review, not to the 2010 Level Certi?cation Team. Following
each 45-day period, the Commissioner alone would determine whether to extend 
certi?cation, and the Team would not be involved with the decision or asked to determine
whether JRC was in substantial compliance with the conditions.5

119. On July 2, 2010, Assistant Secretary McGuire emailed to Secretary Bigby and EOHHS
General Counsel Maureen McGee the 2010 Report, describing it as ?pretty harsh with very
tight timelines.? Assistant Secretary McGuire pointed out that ?[f]or ten years, JRC got
regular two year certi?cations (the max allowed). As soon as we came out of receivership
and were undertaking oversight of the certi?cation again, we issued a one year certi?cation.
Subsequently, they have had two six month certi?cates because of ongoing serious non-
compliance. I had told [Commissioner Howe] that I did not think we would support another
six month certi?cation as the obligation to get to compliance can appear less and less
serious.? Dr. Levendusky was unaware that Assistant Secretary McGuire had previously
expressed an intention not to support another six-month certi?cation and testi?ed credibly
that the length of prior certi?cations was irrelevant to the issue of how long RC
should have been certi?ed in 2010.

120. On July 3, 2010, Dr. Levendusky again emailed Attorney Meacham to let her know that the
revised report ?looks great.?

121. Three of the four 2010 Team members, including Dr. Levendusky, received the ?nal
version of the 2010 Report by email on July 8, 2010, after it had been provided to EOHHS.
It is unclear from the evidence when, if at. all, the fourth 2010 Team member (Thomas
Anzer) received the ?nal version.

 

4 The Court notes that certi?cation was not terminated at any time following the 2010 Report.
5 The Court notes that in practice, at least Dr. Levendusky did participate at least in some instances in

the 45-day report reviews. As an example, Dr. Levendusky participated in the writing of a January 5,
2011 response to a 45-day report ?led by JRC.

Page 24 of 50

 

122.

123.

124.

Commissioner Howe sent the ?nal version of the 2010 Report to RC on July 12, 2010. The
cover letter to the 2010 Report informed RC that Commissioner Howe had accepted the
conditions recommended by the 2010 Team and that current Level certi?cation
?will be extended an additional 14 working days (from receipt of this letter) to allow 
to submit its Corrective Action Plan. The Corrective Action Plan must describe 
plan for Compliance with the Conditions, together with a time line for correcting each
Condition. Pending my approval of the Corrective Action Plan, must submit a report
describing its progress to date in implementing the agreed upon Corrective Action plan
within 45 days, and each 45 days thereafter until the plan is fully executed.? The year 2010
was the ?rst year in which I RC was not granted certi?cation for the use of Level 
aversive treatment.

The Executive Summary of the 2010 Report stated that RC continues to make progress in
the areas previously identi?ed, but . . . there are still signi?cant improvements needed.? The
Executive Summary also stated that the 2010 Team ?has . . . identi?ed several new
concerns regarding Level Program which need to be addressed in order for RC to
maintain its certi?cation.? The 2010 Report identi?ed ?ve separate new concerns.

The 2010 Report, as accepted by Commissioner Howe, imposed eight conditions on JRC.
The conditions are but can be summarized as follows:

1. Behavior Plans. In order to comply with 115 CMR ?Written Plan,? JRC
will: Bifurcate the current treatment plans into (1) a document for submission to
the court and (2) a document providing strictly clinical behavior treatment plans; and
RC will only group behaviors that are ?mctionally related together, and will
clearly document how the behaviors grouped together are related. RC will not group
non?health-dangerous behaviors with health-dangerous behaviors.

2. Inappropriate Use of Level Interventions. In order to comply with
115 CMR JRC will eliminate application of Level aversives for
behaviors that do not meet regulatory standards set forth therein. a) JRC shall
eliminate the use of the GED for infrequent seemingly minor behaviors. b)
RC shall eliminate the use of GED for ongoing seemingly minor behaviors
when: There was not ever any testing of the hypothesis nor any data to
demonstrate that the seemingly minor behavior(s) actually posed a risk of
harm to individuals through their connection to more directly harmful
behaviors. (ii) The use of the GED has not accomplished any ?nther
deceleration in these behaviors over a period of greater than 6 months of use
(even if there was a remote deceleration from a very high rate of the behavior
such as 2 or more years previously). If the GED is stopped in the
treatment of a minor behavior that is hypothesized to be connected to a
harmful one, while holding as much else constant as possible (avoid a move or

Page 25 of 50

 

classroom change or other clearly provocative event), assess if there is a
clinically signi?cant increase in the rate of behaviors to which the minor
behavior is theoretically linked. (iv) If the seemingly minor behavior
increases, but there is no concomitant increase in a behavior to which it is
hypothetically linked which does cause harm directly, then a less restrictive
treatment must be used. c) RC shall eliminate the use of the GED for
inappropriate urinatiOn and defecation for individuals with severe cognitive
challenges. (1) JRC shall eliminate the use of the GED-for food stealing or
spilling drinks or food, or taking food off of the ?oor, except where there is a
clear documented history of direct harm from multiple occurrences of these
behaviors diving onto the ?oor to grab food resulted in escalation,
assault, self-injury). e) JRC shall use one GED per ?urry if instances of
multiple applications are associated with a series of targeted behaviors
occurring together in a short space of time. i) For individuals on a Level 
program for more than two years without clear documentation of substantial
incremental reductions in targeted behaviors, JRC will develop plans to fade
or discontinue use of the approved Level interventions. g) JRC shall
engage an external review team comprised of at least three clinicians with
expertise in applied behavioral analysis to evaluate the effectiveness of current
treatments if there are any people with targeted behaviors (Level that are
not decelerating to one per week or less of applications after six months.

3. Functional Behavior Assessments. RC shall improve the quality of its
FBAs and align them with the requirements of 115 CMR In
submitting its 45 -day report on this Condition, JRC shall submit the ?rst ten
corrected plans to the Certi?cation Team with the Report. As RC revises
the FBAs for other individuals receiving Level interventions, JRC shall
provide them to the Certi?cation Team for review. The improvements shall

- include the following: Speci?ed requirements for each JRC
should (1) document its attempt to identify antecedents in cases where they
have not identi?ed any and (2) more fully discuss possible setting events by
reporting data regarding the rates of occurrence of targeted behaviors under
varied conditions; and c) JRC must implement an intervention for
application when a person is experiencing an illness/physical discomfort that
might occasion problem behaviors.

4. Replacement Behaviors. In order to comply with the standard set forth
in 115 CMR mandating the use of ?least restrictive?
interventions, RC must make modi?cations to individual behavior plans
to include individualized replacement behaviors and must track their
implementation in its Quarterly Reports. RC will also include the .
modi?cations in the Quarterly Reports for June to September 2010, and

Page 26 of 50

 Will send the reports to the Certi?cation Team. The requirements for the
Quarterly Reports were then listed.

5. Speci?c Practice Concerns. Through its ongoing momtoring of the
Level program at JRC, as discussed above the Certi?cation Team
identi?ed several practices involving the application of Level 
programming that caused it concern: a. Inconsistent Application of
Aversive Intervention JRC shall track and document the reason for
each incidence that the criteria for the GED application are met but it is
not administered due to device malfunction, too great a latency
between behavior occurrence and application which means it cannot be
administered, and the unavailability of certi?ed staff to administer
the GED. b. ANR Programs JRC shall eliminate the practice of
?Automatic Negative Reinforcement? including but not limited to hand
holsters and footboards for all students and adults. c. BRLs - RC shall
eliminate the use of ?Behaviors Rehearsal Lessons? except for
infrequent, non-dangerous behaviors. Mechanical Restraint Use. (1.
Mechanical Restraint Use - JRC shall discontinue the use of GED or
GED-4 during the time any student/adult is bathing or in the shower.

6. Review and Oversight Procedures. RC shall resume the practice of
documenting each individual reviewed beginning at its ?rst JRC Peer
Review Committee meeting following the issuance of the Report, and

RC should work with the Human Rights Committee to establish
operating by-laws that re?ect full and accurate responsibilities.

7. Level II Programs. For individuals who are separated or isolated
from peers by being placed on a mat or taking academics in a separate
room or cubicle, JRC clinicians must write these interventions into a
?special considerations? format and present them to the JRC Human
Rights Committee for consideration as a restriction on a Level I
behavior plan. Isolation for the purpose of suppressing inappropriate
behavior shall not exceed 15 minutes unless it is contained in a Level 
behavior plan.

8. Staff Training in Autism Spectrum Disorder. Because the majority of people
with long-term higher rates of GED use have an Autism Spectrum Disorder or ASD,

RC must invest in training regarding Best Practices in the education and treatment of 
children with ASDs.

125. The changes requested in some of the conditions contained in the 2010 Report re?ected
issues that had been identi?ed in prior certi?cation reports, including the bifurcation of
treatment plans into two documents (one for submission to the court and one constituting a

 

Page 27 of 50

 

126.

127.

128.

129.

130.

 

strictly clinical behavior plan), the grouping of behaviors, and the consequating of minor 
behaviors.

The Substituted Judgment section of the Settlement Agreement ?clearly provides that the
courts were to make the ultimate decision regarding individual treatment programs.? Judge
Rotenberg Educational Center, Inc., 424 Mass. at 443. The Court ?nds that by accepting
certain recommendations of the 2010 Team, DDS impermissiny made treatment decisions
for RC clients, including by instructing RC to: ?eliminate the use of GED for infrequent
seemingly minor behaviors,? eliminate the use of GED for certain inappropriate behaviors
such as inappropriate urination or defecation; ?[u]se 1 GED per ?urry if instances of
multiple applications are associated with a series of targeted behaviors occurring together in
a short space of time,? and ?develop plans to fade or discontinue use of the approved Level
interventions? for individuals on a Level 111 program for more than two years ?without
clear documentation of substantial incremental reductions in targeted behaviors.? These
were instructions to JRC based on general criteria and not based on the consideration of any
student or students individually. This conduct is similar to conduct by OFC in the 19805
that led up to the 1986 Settlement Agreement, wherein the Court (Rotenberg, J.) determined
that decisions having the effect of further reducing available treatments constituted
treatment decisions.

Dr. Levendusky admitted on Day 20 of the hearing that he gave untrue testimony under
oath during his initial testimony.

In his initial testimony, Dr. Levendusky testi?ed that the 2010 Team wrote the July 8, 2010
report. He also testi?ed that the 2010 Team was not given any guidance by DDS as to how
to conduct its review of JRC and denied that DDS suggested ?ndings the certi?cation team
should make. However, on further examination during Day 20 of the hearing, Dr.
Levendusky admitted that it was practice to send language for the certi?cation team?s
consideration.

Dr. Levendusky also testi?ed initially that the 2010 Team was entirely independent. Dr.
Levendusky again testi?ed that the 2010 Team was independent during his testimony on
Day 20 of the hearing. However, Dr. Levendusky admitted on cross-examination that the
2010 Team did not inform JRC that it would not be receiving new certi?cation in the 2010
Report. Dr. Levendusky admitted that the 2010 Team was ?doing what DDS was asking it
to do but kept JRC completely in the dar and that such actions were not consistent with
independence.

Tellingly, Dr. Levendusky admitted during his testimony on Day 20 of the hearing that ?to

some extent? he ?handed over to Commissioner Howe and [Attorney] Meacham the
drafting of the 2010 certi?cation report.?

Page 28 of 50

 

131. The Court ?nds that although the 2010 Report was presented as the ?ndings of the 2010
Team, DDS had a signi?cant impact on the content of the ?nal 2010 Report, including
causing the deletion that JRC had been in ?substantial compliance? with the prior
conditions and causing the removal of the recommendation for a one-year period of Level
certi?cation. Although Dr. Levendusky had input into the draft report after June 22,
2010, the remainder of the 2010 Team did not. As acknowledged by Dr. Levendusky at the
hearing, the 2010 Report in its ?nal form was not the result of the review by an independent
certi?cation team. The Court ?nds that DDS did not conduct itself in good faith with
respect to its in?uence over the substance of the 2010 Report.

132. During the late summer and fall of 2010, RC submitted three corrective action plans to
DDS before DDS approved the one RC submitted on October 27, 2010. JRC was then
required to submit progress reports every 45 days describing its progress in implementing
the plan until the plan was fully executed.

133. On November 16, 2010, the 2010 Team met with RC clinicians to provide additional
guidance for the content of clinical treatment plans.

134. JRC submitted its ?rst 45-day report to DDS on December 17, 2010.

135. On January 5, 2011, Commissioner Howe sent the 2010 Team?s Response to 
December 17, 2010 45-day report, ?nding RC not to be in compliance with the conditions
outlined in the 2010 Report. Commissioner Howe extended Level Certi?cation
for 45 days to permit RC to be in compliance and stated that she was requiring RC to
?submit revised sample plans to along with documentation to support compliance
with all Conditions indicated in the July 2, 2010 Report by February 2, 2010 [sic], the date
on which the next 45-Day Progress Report is due.?

136. On February 2, 2011, JRC submitted its second 45-day progress report to Commissioner
Howe and also demanded arbitration pursuant to the Consent Decree due to failure to
grant JRC a two-year certi?cation, with the arbitration ?to take place before DDS takes any
action to suspend or revoke certi?cation.?

137. DDS did not respond to the second 45?day progress report before submission of its
third progress report on March 18, 2011.

138. On March 28, 2011, Commissioner Howe noti?ed RC that its Level Certi?cation was
being extended for another 45 days contingent upon JRC maintaining its compliance with
the Conditions with which it has been in compliance, and improving performance in which
it has been found to be non-compliant or partially compliant.

139. On May 12, 2011, JRC submitted its fourth 45-day progress report to Commissioner Howe.

Page 29 of 50

 

140.

141.

142.

On June 15, 2011, the parties commenced mediation before the former receiver, Attomey'
Perera. Attorney Perera created a working group of clinicians that included members of the
2010 Team (Dr. Levendusky, as chair, Dr. Edwin Mikkelsen Mikkelsen?), and Dr.
Lauren Charlot), as well as two RC clinicians, Dr. Robert Von Heyn and Dr. James Riley.
The working group met on two occasions for a total of ?ve hours.

A memo prepared by Dr. Levendusky regarding the mediation indicated that the working
group ?could not reach agreement about the application of GED to behaviors that
?signi?cantly interfere with appropriate behaviors and/or the learning of appropriate and
useful skills.? In addition, regarding behavior plans, ?[m]ost of the workgroup?s
discussions focused on behavioral treatment plan issues especially in the context of a lack
of adequate data/ documentation to support the utilization of GED for seemingly minor
behaviors, the limited application of less restrictive treatment strategies, inconsistent
grouping of behaviors and urination/defecation as GED targeted behaviors,? but the parties
were unable to reach agreement on these issues. 

On July 16, 2012, DDS and JRC jointly noti?ed Attorney Perera that the parties had
?agreed to the following to resolve their ongoing dispute that precipitated this mediation
regarding compliance with the Conditions of the [2010 Team] set forth in the Report dated
July 12, 2010 and the Corrective Action Plan approved by DDS on November 4, 2010:

1.J RC has offered and agreed to eliminate its Automatic Negative Reinforcement (ANR)
program, and will incorporate this change in a written policy.

2. JRC has offered and agreed to eliminate its Behavioral Rehearsal Lesson (BRL)
programs, and will incorporate this change in a written policy.

3. RC has offered and agreed to eliminate its Contingent Food Program, and will
incorporate this change in a written policy.

4. RC has offered and agreed to eliminate its Specialized Food Program and will
incorporate this change in a written policy. 

5. RC will review all RC behavior treatment plans for removal of minor behaviors subject
to Level aversives Where treatment of the targeted minor behavior is no longer
adequately supported by data or where the targeted behavior has not been observed for a
prolonged period of time.

6. JRC will generalize the Level Team?s written recommendations in the core six areas
to ensure clinical consistency and adherence to these principles in all plans.

7. RC and DDS will continue discussions of the RC Level of Status (LOS) program.

8. RC will submit to the Level Team by August 1, 2012 three (3) Level behavior
treatment plans scheduled for annual review by the Probate Court in October, 2012; and
JRC will submit one (1) additional plan to the Team by August 8, 2012, also for annual
review by the Probate Court in October, 2012. The Level Team will review the
Level behavior treatment plans and provide RC with feedback on the Level 
behavior treatment plans by on or before August 15, 2012 for the ?rst set of plans and
on or before August 22, 2012 for the later submitted plan. RC will revise the Level 

Page 30 of 50

 

143.

144.

145.

146.

147.

148.

149.

 

behavior treatment plans considering the feedback received from the Level 111 Team
and submit them to the Probate Court.

9. All Level behavior treatment plans not submitted to the Level 111 Team for review and
feedback will be submitted to DDS when such plans are ?led with the Probate Court;
and

10. RC will submit a new Application for Level Certi?cation to DDS by September 4,
2012.?

Neither party challenged the result of the mediation in this Court, as would have been
permitted by the Consent Decree and by the April 13, 2006 Court Order.

During the 2011-2012 mediation, RC was unaware that the initial drafts of the 2010
Report included a ?nding of substantial compliance by RC and a recommendation for RC
to receive a one?year certi?cation for the use of Level aversive treatment.

The 2011-2012 mediation was the only mediation to occur during Commissioner Howe?s
tenure as Commissioner of DDS.

Dr. Levendusky again chaired the Level Certi?cation Team that conducted its review in
response to 2012 application for Level certi?cation (?2013 Team?). 

On September 6, 2013, Commissioner Howe noti?ed I RC that she had accepted the
Conditions outlined in the 2013 Team?s Report (?2013 Report?) and granted .I RC Level 
certi?cation for ?One Year With Conditions, conditioned upon the [2013] Team ?nding full
compliance in six months with the Conditions 1-8 for which the Team found had
achieved a ?Partially Met? or ?Not Met? rating.?

The 2013 Report discussed compliance with the eight conditions from the 2010
Report and also imposed six new conditions. The 2013 Team found that with respect to
many of the conditions imposed in prior reports, JRC had either not adhered to the
condition or had made progress but was still not in full compliance. The conditions either
partially or not met included the requirement for a single comprehensive treatment plan
(despite the fact that JRC was found to be in compliance with this condition in the 2009
Level Certi?cation Team Report), the grouping of only functionally related behaviors,
eliminating the use of the GED for infrequent and seemingly minor behaviors and for
antecedent behaviors, discontinuing use of the GED for individuals after more than two
years if targeted behavior is not reduced, and the condition regarding replacement
behaviors.

The 2013 Report?s six new conditions were as follows:

1. RC clinicians should have a structured method for transferring stimulus control
from the GED to some other stimulus i.e. for ?fading? the GED.

Page 31 of 50

 

150.

151.

152.

153.

154.

155.

156.

2. JRC must provide evidence that the person being treated understands the Level
Contingencies.

3. JRC should reduce the large numbers of minor-target behaviors addressed [by
non-GED contingencies] when there is evidence of pinpointing or punishing these
leading to a major targeted behavior.

4. RC must do a more complete assessment on any individual who is
admitted with one or more diagnoses and/or one or more 
medications.

5. RC must accurately identify the risks associated with Level treatment in
consent forms and in court submissions in relation to substituted judgment for the
GED, GED-3A or 

6. JRC should demonstrate FDA ?approval? or ?clearance? for the GED-3A and

GED-4 devices.

application for Level certi?cation submitted in September 2014 was still pending
as of the time of the hearing in this matter.

JRC has been authorized to use Level aversive treatment at all times.
1). Standard ofCare/Prof?ssional Consensus Regarding Aversives

All parties agree that physical aversive treatment is controversial. RC is the only facility in
the country that uses electric skin shock aversive treatment for individuals with
developmental and intellectual disabilities.

Unquestionably, many of students engage in many severe problematic behaviors,
including aggressive behaviors, self-injurious behaviors, and destructive behaviors. 
policy is not to refuse or expel students on the grounds that the student?s behavior is too
dif?cult to manage. As of 2015, many JRC students have been diagnosed with
autism/autistic disorder, a developmental disability, and/ or various disorders.

The vast majority of current RC students are residents of Massachusetts and New York.

Many RC students have been expelled from prior programs in which they have been
enrolled. Multiple parents of RC students testi?ed credibly that their son or daughter had
been terminated ?om the programs they attended prior to JRC due to the child?s
unmanageable behavior, and that JRC was the only program willing to accept the son or
daughter.

In addition, multiple parents of RC students testi?ed credibly that their son or daughter
was restrained or heavily sedated by medication during his or her time at prior programs.

Page 32 of 50

 

157.

158.

159.

160.

161.

 

Several former RC clients who received Level aversive treatment and parents of RC
students receiving Level aversive treatment testi?ed at the hearing, crediting the
aversive treatment received at RC with the students? signi?cant improvement in their
problematic behaviors. The RC clients and parents were sincere and credible in their
testimony.

A 2014 description by RC of its Policy and Procedure regarding Level treatment
contained within its most recent application for Level certi?cation states that RC
provides an environment in which contingent consequences are brought to bear to increase
desired behaviors and decrease undesired behaviors. Typically, RC relies in the ?rst
instance on positive-only behavior procedures, including reward programming and teaching
new skills to take the place of problem behaviors. If positive programming does not
suf?ciently accomplish a student?s treatment goals, or for the students with the most
problematic behaviors for whom positive programing has not been effective, the

parent/ guardian may be given the option of supplementing with aversive treatment. A
parent/ guardian must approve the addition of aversive treatment and the treatment must be
authorized by the Probate and Family Court pursuant to a substituted judgment action. .T he
student is appointed counsel pursuant to the substituted judgment action.

The primary aversive used at RC is skin-shock administered via a GED device. Only a few
children at JRC wear a GED device, and most JRC students who wear a GED device are
adults. RC staff operate the transmitter, and the student wears the battery-operated
receiver/ stimulator. After a JRC staff member observes a targeted behavior, a second JRC
staff member veri?es that the Speci?c behavior is on the student?s recording sheet. Within 1
30 minutes of observing the targeted behavior, the RC staff member then applies the GED,
which emits a two-second shock on the student?s skin, usually the arm or leg. The GED-3A
delivers a current of 15.25 milliamps, and the GED-4 delivers a current of 41 milliamps.
The application of the GED is painful to the student and is intended to discourage the
problematic behavior.

Since the Consent Decree, there have been signi?cant deveIOpments in 
medications and their use on individuals with developmental disabilities. Dr. Mikkelsen,
Jeffrey Geller, MD. Geller?), and James T. McCracken, MD. McCracken?)
testified credibly at the hearing as to the advances made during the last several decades. All
three doctors are well respected and have experience treating individuals with
developmental disabilities who exhibit severe behavioral problems.

Dr. Mikkelsen has been a licensed in Massachusetts since 1974 and is certi?ed
by the American Board of and Neurology in both adult and child Dr.
Mikkelsen consults as a for DDS and has served on the Level Certi?cation
Team since 2006.

Page 33 of 50

 

 

162.

163.

164.

165.

166.

167.

168.

169.

Dr. McCracken is licensed to practice in California and is board certified in adult
and child Since 1987, he has been a professor of in the Department
of and Behavioral Sciences at the University of California Los Angeles
Medical School. Since 1994, he has been the Director of the Division of Child
and Adolescent at the UCLA Institute and Hospital.

Dr. Geller has been a licensed in Massachusetts since 1974 and is board
certi?ed in Dr. Geller has served as a professor of at UMass Medical

since 1986 and is the Medical Director of the Worcester Recovery Center and Hospital.

Prior to 1986, medications were given to developmentally disabled
individuals primarily to sedate them.

Beginning in the late 19803, began to recognize that individuals with
developmental disabilities can suffer from co-morbid disorders in addition to
their deveIOpmental problems, and that the co-morbid disorders could be treated
with medications.

Several new medications were developed after the Consent Decree,
including Risperidone (?Risperdal?), Aripiprazole (?Abilify?), Quetiapine (?Seroquel?) and
Olanzapine (?Zyprexa?). Selective serotonin reuptake inhibitors were also
introduced after the Consent Decree. Further, since 1986, clinicians have begun to use
mood stabilizers to treat developmentally disabled individuals.

Drs. Mikkelsen, McCracken, and Geller all agreed that the use of medications
to treat individuals with intellectual or developmental disabilities is a generally accepted
practice both within Massachusetts and across the United States. -

Following a 2002 study on Risperdal and an article about the study authored by Dr.
McCracken, the FDA approved Risperdal to treat ?irritability associated with autistic
disorder in children and adolescents,? which includes of aggression towards
others, deliberate self-injuriousness, temper tantrums, and quickly changing moods.?
However, Dr. McCracken admitted at the hearing that the study did not demonstrate the
effectiveness of Risperdal speci?cally with respect to treat self?injurious behavior. In
addition, Dr. McCracken admitted that in a recent lecture given by him, his presentation
included that neither Risperdal nor Abilify reduced self?injurious behavior as compared to a
placebo within the study, and that this was a ?big disappointment.?

A patient taking certain medications can experience side effects associated
with those medications. Credible testimony from Drs. Mikkelsen and McCracken indicated
that side effects associated with medications include production of breast
milk, breast tissue development, and (rarely) development of ketoacidosis (Risperdal), and
weight gain, tremor, and motor and neurologic side effects (Abilify).

Page 34 of 50

 

170.

171.

172.

173.

174.

175.

176.

Dr. Geller testi?ed credibly that side effects of medications generally may
include akathisia (restlessness), stroke, neuroleptic malignant tardive dyskinesia
(involuntary movement), cardiovascular risk, weight gain, bradycardia (slowing of heart

. rate), cognitive and motor impairment, and acclimation, meaning that a drug?s dosage has

to be increased to have the same effect.

Dr. Mikkelsen testi?ed credibly that medications can cause serious and .
sometimes life?threatening side effects such as bone marrow shutdown, low body sodium
which can cause seizures, decreasing platelets to the point of causing blood clotting
problems, pancreatitis, and ataxia (unsteadiness on one?s feet).

The Court notes Dr. Mikkelsen?s credible testimony that the possibility of side effects does
not automatically render a medication inappropriate for a patient.

RC has not conducted a controlled study to investigate either physical or 
side effects of its electric skin shock aversive treatment. Nevertheless, neither the former

RC students who testi?ed at the hearing nor the DDS experts who voluntarily received a
GED application experienced any side effects other than the temporary pain from the shock.
On two rare occasions, a RC client was burned following a GED application, when RC
procedures were not being followed. There was no evidence at the hearing as to any
side effects experienced by RC students receiving electric skin shock
aversive treatment. 

2012 policy regarding medication provided to parents of JRC students
states that ?it is policy to avoid, or at least minimize the use of 
medication.? Under this policy, ?[p]arents whose students currently are receiving
medications will be requested to agree that once their child is enrolled at JRC,
a will be consulted to consider the-benefits of a program of 
medication removal.? The policy further states that ?[p]arents . . . who are not interested in
trying an approach which avoids or minimizes such medication are encouraged to consider
enrolling their child? in other programs.

The evidence at the hearing indicates that JRC does not generally include a detailed history
of RC students? medication history in their treatment plans. Typically, treatment plans
contain?a list of the medications tried in the past but without comprehensive
information as to durations or dosages.

Although some JRC students do currently receive medication, in most cases
JRC students are weaned off of their medications soon after arrival at JRC
following their consultation with consulting Dr. Anthony B. Joseph
Joseph?).

Page 35 of 50

 

177.

178.

179.

180.

181.

182.

183.

184.

185.

A chart in evidence summarizing gist consult records for students
receiving Level treatment at RC as of June 2015 indicated that of the 64 students, there
is no record of a consult for seven students. During calendar year
2016, only one student was treated by Dr. Joseph (as of May 20, 2016). The vast majority
of these students, almost 88%, had not had evaluations for more
than ?ve years, and more than half of these students had not had a 
evaluation in the last ten years.

There was no evidence at the hearing comparing the ef?cacy and restrictiveness of aversive
treatment versus medication for any one particular individual.

For all JRC students receiving aversive treatment, a RC clinician develops treatment plans,
implements the plans, and supervises the treatment with the assistance of a treatment team.
Each plan is reviewed and approved by clinicians designated by Executive Director,
and all interventions are approved by a physician and sometimes also by a 
neurologist, or cardiologist. The treatment plans are also reviewed by a Human Rights
Committee and a Peer Review Committee.

Of the eight clinicians listed by RC on its September 2014 application for Level 
certi?cation as ?responsible for developing behavior modi?cation plans,? all eight have
attained their or their Psy.D. Three are licensed and three are board
certi?ed behavior and/or licensed behavior The other two clinicians are
neither licensed nor board?certi?ed behavior 

September 2014 application for Level certi?cation also lists six clinicians
?responsible for assisting in the development of behavior modi?cation plans.? Of these six
clinicians, two are board-certi?ed behavior and one is a licensed mental health
counselor. The other three individuals are unlicensed.

Dr. Blenkush testi?ed credibly that consulting Dr. Joseph, is involved in
developing a student?s Level 111 plan only ?for the purposes of the contraindication form?;
he is not otherwise involved in the plan?s development.

Thus, in many instances, Level treatment plans are developed without any input from a
licensed health care provider.

Neither Dr. Joseph nor Dr. Edward A. Sassaman Sassaman?), a pediatrician who has
as a consulting physician for JRC for 26 years, has ever found any contraindications to
using the GED for any patient.

After JRC develops a Level plan, it petitions this Court for substituted judgment
authorization. Once a Court has approved a Level plan, JRC must petition for
reauthorization on an annual basis to continue the treatment.

Page 36 of 50

 

186.

187.

188.

189.

190.

191.

192.

These proceedings are typically unopposed, although DDS has the ability to participate in

the proceedings at its election, as it did in the recent Guardianship of SB. matter. Therelare
approximately 60 RC clients currently receiving Level aversive treatment; therefore,
generally, there are approximately 60 hearings per year for JRC clients.

I RC submits the following materials to the Court for the substituted judgment proceedings:
a Proposed Amended Behavior Modi?cation Treatment Plan, an af?davit by a RC
clinician, a medical contraindication form, and a contraindication form.
Additionally, if the student has a neurological or cardiac problem, a neurological or cardiac
contraindication form will be submitted by JRC.

The Proposed Amended Behavior Modi?cation Treatment Plan provides the Court with a

student?s treatment history and diagnosis and identi?es the behaviors JRC intends to target
with the GED. The treating clinician?s af?davit opines to the Court that the GED is the least -
intrusive, most effective treatment for the student in question.

Dr. Levendusky testi?ed credibly that RC is a very humane environment for its students,
and that the students appeared to him to be treated respectfully. He described I RC as having
44 houses where the clients live, and that the areas both where the clients go to school and
where they live are attractive. Dr. Levendusky credibly described the staff as well trained
and noted that JRC has a video system which closely monitors the GED applications.

As of 2014, 70% of RC students were being treated using positive programming alone, and
30% of the population had court-authorized aversive procedures as part of their treatment.

A June 2015 census, the most recent completed at the time of the hearing, indicates that
approximately 25% of students had Level treatment plans at that time, all of
which are court-approved as required. For each student, the census shows the number of
years since initial approval of Level treatment. More than 90% of the students with
Level treatment plans started receiving Level treatment more than ?ve years prior,
and almost 60% of the students with Level treatment plans started receiving Level 
treatment more than 10 years prior. Approximately 27% of the students with Level 
treatment plans started receiving Level treatment more than 20 years prior to the 2015
census.

Dr. Shnidman, one of the independent licensed charged with evaluating and
preparing reports on RC students, testi?ed credibly that she observed improvements in the
behaviors of many RC students after beginning aversive treatment with the GED. Dr.
Shnidman testi?ed that she recommended GED treatment because she knew that prior
treatment given to .1 RC clients had been ineffective.

Page 37 of 50

 

193.

194.

195.

196.

197.

198.

199.

200.-

Dr. Mikkelsen admitted at the hearing that in many cases, there was a rapid deceleration in
self-injurious behaviors after use of the GED, with the problematic behaviors decreasing
from hundreds per day to zero in a very short period of time. The rapid decrease in self-
injurious behaviors by RC clients post-GED was con?rmed in testimony given by Dr.
Shnidman and Dr. Jennifer Zarcone Zarcone?), senior behavior analyst and
supervising on the neurobehavioral unit at the Kennedy Krieger Institute.

A March 22, 2008 memorandum from John Samuelian to Assistant Secretary McGuire
which served as a ?review? of ?research trends in aversive interventions? included as a
conclusion that ?[a]versives are effective in reducing severe [self-injurious behavior] 
quickly, but are not necessarily the only means to do so.? The memorandum also cited
literature supporting the proposition that aversives may be successful in maintaining
reduced rates of severe problem behaviors for as long as ?ve years.

Dr. Levendusky acknowledged at the hearing that there are many examples where the GED
has had a signi?cant positive impact on a JRC client.

Director of Research, Nathan Blenkush, Blenkush?), a board?
certi?ed behavior analyst, analyzed data regarding 189 JRC clients receiving GED
treatment since 2000.

As of April 30, 2015, the average occurrence of behaviors of these clients
categorized as ?aggressive? fell from 308.54 pre-GED to 4.71 after the start of GED
treatment. The average occurrence of behaviors of these clients categorized as
?health dangerous? fell from 457.52 pre-GED to 7.99 after the start of GED treatment.

Of the 189 RC clients analyzed, 56 clients (approximately 30%) were completely faded
from GED treatment at least two weeks prior to their discharge from JRC, 31 clients
(approximately 16%) were in the process of being faded from the GED at the time of their
discharge, and 69 clients (approximately 37%) were not faded from the GED prior to
discharge.

In evidence at the hearing was a chart compiled by Dr. Geller using JRC data from
November 2000 to March 2014 regarding the frequency of GED applications received by
87 students. The chart re?ected, for each student, the years they received GED applications,
the range of GED applications per 12-month period, and the peak 12-month period the
12-month period during which the student received the greatest number of applications).

Only for more than half of the 87 students was the peak 12-month period the
student?s ?rst year at JRC (or, for students who came to JRC before November 2000, the
November 2000?November 2001 year). However, the Court recognizes that the absence of
pre-2000 data could render this statistic misleading.

Page 38 of 50

 

 

201.

202.

203.

204.

205.

206.

207.

208.

Nevertheless, peak GED applications for some JRC students occurred in the 7th, 9th, 10th, or
even 12th year. The ef?cacy of GED applications in reducing problematic behavior for these
students is certainly questionable.

Approximately half of US. states have banned electric skin shock for aversive conditioning .
for developmentally disabled students.

Many witnesses called by Defendants credibly testi?ed that the facilities with which they
have been af?liated do not or did not use skin shock as aversive conditioning for
challenging behavior and that they were unaware of any facilities other than RC using such
treatment on individuals with developmental disabilities. These witnesses include: Bernard
Simons, Deputy Secretary of Developmental Disabilities in the Department of A
Developmental and Mental Hygiene for the State of Maryland and former Director for
Developmental Disabilities for the State of Missouri; Nancy Thaler, Deputy Secretary for
the Of?ce of Developmental Programs for the Commonwealth of Dr.
Levendusky; Dr. Bacotti, at Glavin Regional Center; and Dr. Hamad, former
at Femald State School.

Dr. Blenkush testi?ed credibly that he is aware of only one facility other than RC that uses
electric shock for aversive conditioning, and that facility treats adults who have voluntarily
enrolled in the program. 

DDS expert Dr. McCracken testi?ed that the fact that no other program in the country uses
electric shock treatment means that such treatment ?stands far outside any standard of
care.?

DDS expert Dr. Zarcone testi?ed that the use of electric shock is not an accepted
professional practice in Kansas, Maryland, New York or anywhere else.

Several witnesses who voluntarily underwent a GED application testi?ed at the hearing
regarding their experience. Drs. McCracken, Geller, and Zarcone all described the shock of
the GED-3A as extremely or quite painful, and Dr. Mikkelsen?s response to receiving a
GED-3A application is that the use of the device is ?unconscionable.? Conversely, Lauren
Emmick, the mother of a JRC client and Dr. Mitchell Shear, the father of a JRC client and a
practicing physician, both testi?ed'that the shock hurt but was brief.

Unquestionably, there has been limited recent research regardingthe use of punishment as a
treatment. A 2014 article in evidence by Sinead Lydon, Olive Healy, and Laura Moran
entitled A Quantitative Examination of Punishment Research indicates that only 22 articles
on punishment as a form of treatment have been published since 2010.

Page 39 of 50

 

r: 

209. In evidence were a chart prepared by Dr. Geller regarding 168 journal ?articles and ether 
documents on contingent skin shock, as well as a responsive chart offered by RC.  1
However, none of these 168 items constituted a large-scale research trial of skin shock. ?3

 

 

 

210. [l he  decision Guardianship fof ?Brandon,?424sMas?, @1820 997) was in?this
meagre c??rtir?nomftar?s: th?LQEthlislzas?t?vd 
and    the?use 
fshock- therapy were admitted ?iifiievidence? were noted by the SJ its-opinion?,  '5
Guardianshiri?fBi?andon. 42445216183}- .

 

 

211. In evidence were excerpts from a 2016 edition of an ABA textbook, Contemporary
Behavior Therapy (Sixth Edition) by Michael D. Spiegler. Chapter eight states in part that
?mild electric shock often is an effective and ef?cient means of signi?cantly reducing self-
injurious behaviors.? -

 

. 

212. In Secretary Bigby?s January 10, 2008 memo to Governor Patrick regarding JRC, she stated i 
that ?[a]versives have been a mostly accepted part of behavioral interventions with  - 
individuals engaged in violent or severe self-injurious behavior for some time.? i

213. Dr. Christopher Fox, a employed by DDS since 1985, indicated in a January
2013 email introduced into evidence that an ideal world I would like all interventions . 
to be available; in the world as it exists currently that is not the case.? Dr. Fox explained at  i5 
trial that to him, an ?ideal world? would be one in which the candidate for contingent {j  ?1 . .,
aversive treatment would have been assisted by ?well-quali?ed clinicians previously,? and  fife: i
that the individual would have had relevant assessments completed recently including a 
?mctional behavior assessment. Dr. Fox testi?ed that he does not believe that we live in an
ideal world12114. Dr. Bacotti, who has been a licensed in Massachusetts for more  30 years
and also was employed was not called to testify at trial, but  his,
he?o?i?on depoSition?tliat; as 9%

.5

 termini-2913:, meiuelqi?av?rsiyes; ginciuding GED.  an accept?ditool in
 ?syehcjg?ggpr-beaa for   problemagicrm?
 Bacottr. alsonot?djthatfheyhadb?en abl?ifd providetreatirient in 
practiee aversivesi 

 

7 Tg-wwa. ?mu215. Dr. Bacotti was representative on Human Rights Committee    it:  i i 
he   treatment that the and would not have ?cloneT so if} . 
__a1it?maavest 3:  i 2537?; '3

216. In its memorandum in support of the Motion to Vacate, DDS claims that ?there is now a
?consensus? professional opinion that positive behavior supports (?PBS?)?app1ied

- sag-1m" . rv 

Page 40 of 50

 

 

 

217.

218.

219.

220.

221.

222.

223.

224.

behavior analysis without punishment?can be used to effectively treat people with

challenging behaviors.?

JRC has long used applied behavior analysis as its primary treatment mode. 
clinical staff is, overwhelmingly, comprised of clinicians credentialed in ABA.

There are many university undergraduate, graduate, and doctoral-level educational
programs that. award degrees in ABA. The majority of U.S. states, including Massachusetts,
license applied behavior 

ABA is a sub-discipline in the ?eld of that focuses on addressing challenging
behavior in individuals with disabilities. Practiced by both behavior and clinical
applied behavior analysis addresses the aspects of environmental and
physiological factors that may stimulate problem behavior. Behavior study the
?functional relationships? among problem behaviors, their ?antecedents? or ?setting
events,? i.e. the conditions that precede problem behaviors, and the ?consequences? that
follow them. 

PBS is more accurately described as a philosophy or general approach to treatment than as
a sub-discipline. PBS focuses on antecedents and what environmental changes can be made
to improve the client?s quality of life.

Dr. Zarcone testi?ed credibly that PBS permits certain punishment procedures, but
admitted that a few PBS proponents believe that PBS exfcludes all punishment.

Regardless, DDS did not offer credible evidence at the hearing that PBS can effectively
treat some or all of clients.

DDS constituted a PBS Advisory Subcommittee with a charge to make recommendations to
DDS about how to implement PBS. In the subcommittee are Dr. James Waters 
Waters?), a DDS with more than 30 years of experience in behavioral
Christopher White, White?), and Dr. Steve Woolf Woolf?).

An email chain involving all three members of the PBS Advisory Subcommittee indicated
their support for the use of aversive treatment in some circumstances. Dr. Waters said in an
undated email in evidence that ?[a]versive interventions are . . . not as universally effective
as less experienced folks assume? but went on to state that ?the reality is that if someone is
seriously assaultive or self?injurious, or engages in behaviors that would cause
developmentally typical people to be arrested, we can?t just let them go. If we have an
individual who engages in assaultive behavior that permanently dis?gures others, and we
have an aversive consequence that brings the behavior to near-zero rates, do we stop
consequating the once every three months or once every ?ve years occurrence of the
behavior??

Page 41 of 50

 

 

225-. In the same email chain, Dr. White wrote that eliminating aversive treatment ?is neither
?real world? nor effective. For those of us who serve highly violent, severely self-abusive or
sexually offending individuals, there need to be consequences in place that will discourage
or prevent high risk behaviors.?

226. In a January 16, 2013 email in evidence, Dr. Woolf wrote that he ?is concerned with the
proscription of? level interventions.? Later in the email, Dr. Woolf stated that ?there is a
very small minority of clients that may require a positive punishment procedure described
as a level intervention. Banning these evidence-based 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 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.?

227. Dr. Foxx, one of the national experts consulted by Dr. Hamad in preparation of the Hamad
Memo, told Dr. Hamad that he believed that there were cases where aversive therapy
should be considered. According to the Hamad Memo, Dr. Foxx characterized such cases as
a ?very, very small number? and ?exceptional? where the behavior was ?so extreme as to be
life threatening.? Dr. Foxx suggested that the number of individuals who needed such
treatment ?was so small that one program for the entire nation would be more than
suf?cient to meet any potential need.?

228. Dr. Carr, another of the national experts consulted by Dr. Hamad, forwarded to Dr. Hamad
email correspondence between Dr. Carr and a BostOn Magazine reporter in which the
reporter said he had spoken with scientists and clinicians from Johns Hopkins and the
University of Florida as well as Boston who spoke with the reporter off the
record. The scientists and support consideration of punishment as an
alternative treatment when positive behavior support does not work. Dr. Hamad did not try
to determine the identities of the clinicians/ scientists referenced by Dr. Carr.

229. Dr. Levendusky testi?ed that he believes that in certain situations, JRC could be harmed if
its ability to use the GED device were taken away, and that there is a role for Level 
aversive treatment ?when it?s totally and unequivocally been shown that that is the only
choice.?

230. The National Association of State Directors of DeveIOpmental Disabilities Services
is an organization comprised of the director for developmental disabilities
from every U.S. state. In June 2015, the Board of Directors approved a Position
Statement that included the stance that aversive interventions should not be used.

Page 42 of 50

 

231.

232.

233.

The Behavior Analyst Certi?cation Board issues board certi?cation to behavior
and has issued Guidelines for Responsible Conduct for Behavior (?the
BACB Guidelines?), the 2010 version of which was in evidence. The BACB guidelines do
not prohibit the use of skin shock; rather, section 4.05 of the BACB Guidelines provides as
follows: ?The behavior analyst recommends reinforcement rather than punishment
whenever possible. If punishment procedures are necessary, the behavior analyst always
includes reinforcement procedures for alternative behavior in the program.? Section 4.10 of
the BACB Guidelines states that a behavior analyst must always recommend the ?least
restrictive procedures likely to be effective with a behavior problem.?

The American Association has approximately 120,000 members
and is the preeminent and largest professional association for in the United
States. Division 33 of the APA is Mental Retardation and Developmental Disabilities. The
2015 version of Division 33 ?3 Guidelines on E?ctive Behavioral Treatment for Persons
with Mental Retardation and Developmental Disabilities Division 33 Guidelines?)
was in evidence. The APA Division 33 Guidelines allow for ?[h]ighly restrictive or
aversive procedures . . . only in instances in which there is an immediate physical danger to
self or others, or there may be permanent sensory or other physical impairment, or the client
may be prevented from receiving necessary medical, surgical, or emergency medical
services, or the frequency or intensity of the problematic behavior prevents adequate
participation in normal activities appropriate for the individual?s circumstances and
personal goals.? 

0. Conclusion

The Court ?nds that the Defendants have not met their burden under Mass. R. Civ. P. 60 
(5) to demonstrate that the Consent Decree ?has been satis?ed, released, or discharged . . . .
or it is no longer equitable that the [Consent Decree] should have prospective application.?
Further explanation of this ?nding can be found in the Rationale, below.

RATIONALE

In this action, Defendants move pursuant to Mass. R. Civ. P. 60 (5) to vacate the

Consent Decree entered on January 7, 1987. Although the Consent Decree is in effect today, at
the time of its execution, the parties expected that it would be time-limited in that it would
?automatically terminate at the second review unless the Court, for good cause shown . . . orders
otherwise.? However, on July 7, 1988, the Court (Rotenberg, J.) extended jurisdiction over the
Settlement Agreement ?until further order of the Court.? No party sought to terminate the
Consent Decree, nor has any party ?led a motion to vacate the Consent Decree other than the
instant motion.

a. Legal Standard

Page 43 of 50

 

Rule 60 (5) of the Massachusetts Rules of Civil Procedure permits a court to relieve a
party of its negotiated obligations set forth in a consent decree if ?the judgment has been satis?longer equitable that the judgment should have prospective Mass.

R. Civ. P. 60 (5). is settled that such relief [under Mass. R. Civ. P. 60 is
extraordinary and may be granted only upon a showing of exceptional circumstances.? Thibbitts
v. Crowley, 405 Mass. 222, 226 (1989) (quotations and citations omitted).

consent judgment is essentially a settlement agreement that is entered as a judgment.
. . . [W]hen . . . [the moving party] made a ?ee, calculated and deliberate choice to submit to an
agreed upon decree rather than seek a more favorable litigated judgment, [the moving party?s]
burden under Rule 60 is perhaps even more formidable than had [it] litigated and lost. . . .
Altering the material terms of such an agreement at the behest of one party, without the consent
of the other, does violence to the second party?s expectations and to the very concept of
judgment by consent.? Thibbitts, 405 Mass. at 226-227 (quotations and citations omitted).

Under Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 393 (1992), ?a party
seeking modi?cation of a consent decree must establish that a signi?cant change in facts or law
warrants revision of the decree and that the proposed modi?cation is suitably tailored to the
changed circumstance.? This standard can be broken down into three distinct elements: (1) ?a
signi?cant Change in facts or law? must have occurred; (2) the change must ?warrant[] revision
of the decree?; and (3) the modi?cation must be ?suitably tailored to the changed circumstance.?
I_d. The Supreme Court emphasized in RLfo that ?a consent decree is a ?nal judgment that may
be reopened only to the extent that equity requires.? Li. at 391.

. As the moving party, Defendants must ?rst establish a signi?cant change in ?factual

conditions or in law.? RLfo, 502 U.S. at 384. ?The third clause of Rule 60 (5) . . . allows
relief from a judgment which was valid and equitable when rendered but whose prospective
application has, because of changed conditions, become inequitable.? Mass. R. Civ. P. 60,
Reporter?s Notes (1973).

Second, if Defendants establish a significant change in facts or law, then, in order to
establish that revision of the Consent Decree is ?warranted,? Defendants must show that the new
circumstances ?make compliance With the decree substantially more onerous,? or that the Decree
?proves to be unworkable because of unforeseen obstacles,? or that ?enforcement of the decree
without modi?cation would be detrimental to the public interest.? R_ufo, 502 U.S. at 384.
However, ?[o]rdinarily . . . modi?cation should not be granted where a party relies upon events
that actually were anticipated at the time it entered into a decreeclear that a party
anticipated changing conditions that would make performance of the decree more onerous but
nevertheless agreed to the decree, that party would have to satisfy a heavy burden to convince a
court that it agreed to the decree in good faith, made a reasonable effort to comply with the
decree, and should be relieved of the undertaking under Rule 60 RLfo, 5 02 U.S. at 385.

Page 44 of 50

 

Finally, Defendants must show that ?the proposed modi?cation is suitably tailored to the
changed circumstance.? Rufo, 502 US. at 391. To do so, DDS must prove that the ?proposed
modi?cation is tailored to resolve the problems created by the change in circumstances.? Id,

In addition, in order to be successful on their motion, Defendants must have ?led it
?within a reasonable time.? Mass. R. Civ. P. 60 ?In determining whether a motion was ?led
within a reasonable time, 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 ?nality.?
Kennedy v. Beth Israel Deaconess Med. Ctr., Inc.. 73 Mass. App. Ct. 459, 467 (2009)
(quotations and citations omitted).

b. Analysis

Defendants contend that two signi?cant changes have occurred since the entry of the
Consent Decree that would warrant the Consent Decree being vacated: (1) the purpose of the
Consent Decree has been achieved; and (2) there is now a professional consensus that the
aversive interventions used at RC do not conform to the accepted standard of care for treating
individuals with intellectual and developmental disabilities.

i. Achievement of Purpose of the Consent Decree/De?ndants? Compliance
with the Consent Decree

In the litigation leading up to the January 7, 1987 Consent Decree, the Court found that a
19803 re?study report regarding BRI, predecessor, which was ?laudatory to BRI in all
substantial respects? was withheld from BRI. Despite the existence of this positive report, OFC
(whose responsibilities have since been assumed by DDS) did not provide the report to BRI at
the time it was issued, and OFC terminated physical aversive therapies at BRI and prohibited
BRI from admitting any new clients/ students. The word was then stamped on the
report after it was requested by BRI to make it appear that the report had yet not been ?nalized 
by OFC. The Court also found that decisions issued by OFC that reduced available treatment
methods effectively constituted treatment decisions. Presumably, this conduct by OFC led to the
inclusion of a provision in the Settlement Agreement requiring each party to ?discharge its
obligations under the terms of this agreement, in good faith.?

In the contempt action adjudicated in 1995, the Court found that DMR, the entity whose
responsibilities have now been assumed by DDS, suppressed two certi?cation team reports
favorable to RC, including one that recommended recerti?cation of RC with respect to
aversive procedures subject only to minor conditions. DMR initially granted RC a short 25-day
interim certi?cation and held ?Tuesday Morning Meetings? to strategize ways to disrupt JRC
operations. Among other things, DMR hired a purportedly independent review team that the
Court later found was not at all independent, and DMR required JRC to re-write all of its
behavior modi?cation treatment plans. The Court found that DMR violated the Consent Decree
by interfering with the treatment plans of certain clients and by not regulating RC in good faith.

Page 45 of 50

 

?As a result, DMR was placed into receivership with respect to all of its dealings with RC. The
receivership was in effect from 1996 to 2006.

In 2008, Secretary Bigby expressed in a memo to Governor Patrick her opposition to
aversive treatment and suggested that a commission be created to investigate the ef?cacy of the
GED. After Assistant Secretary McGuire convened a clinical advisory group, she sent a memo to
Secretary Bigby in December 2008 in which she indicated that the ?lack of scienti?c or clinical
practice support for [contingent aversive] interventions, the signi?cant administrative challenges
they present, the lone status of the state in providing safe harbor to a particular aversive practice
and the evolution of well-documented ecological and positive behavior management
techniques all argue for a major change in policy in the state.? One of the primary sources for the
December 2008 memo was a July 2008 memo by Dr. Charles Hamad, one of the physicians in
the advisory group. Assistant Secretary McGuire made signi?cant substantive changes to the
memo, including authoring the conclusion sentence, adding a sentence purporting to sumrharize
a review of literature she had not herself conducted,- and adding a summary of the opinion of one
of the national experts consulted by Dr. Hamad, even though she was not involved in
interviewing that expert. Assistant Secretary McGuire?s revisions also included the removal of a
sentence stating that one facility for the entire nation may be suf?cient to meet the need for the
small number of people who may require aversive treatment because it ?looked like a rationale
for keeping one place open in the country (which would be the one we already have)? The July
2008 memo by Dr. Hamad, therefore, was not an objective review of the current scienti?c and
clinical practice support for the use of aversives completed by an independent clinical advisory
group. It was instead a document in?uenced heavily by non?clinical representatives of DDS. The
December 2008 memo from Assistant Secretary McGuire, while not directly related to 
regulation of RC, was intended to create a justi?cation for DDS to pursue a path that would
eventually end with the elimination of contingent aversive treatment at JRC.

The next Level Certi?cation Team to begin its work after the issuance of the 2008
memos was the 2010 Team, which issued its report on July 8, 2010. The team was chaired by Dr.
Levendusky, who had chaired prior certi?cation teams. As detailed above in the ?ndings, many
parts of the ?nal report of the 2010 Team were entirely rewritten by Attorney Meacham and
Commissioner Howe. They made signi?cant substantive changes to the 2010 Report apparently
without?all of the 2010 Team members having seen and approved the changes. The 2010 Team
had recommended that RC receive a one-year certi?cation and had included in its report that
RC was in substantial compliance with the conditions contained in the prior certi?cation report.
After the changes made by Attorney Meacham and Commissioner Howe, the report instead
stated that RC was making progress in the areas previously identi?ed but there was still
signi?cant improvement needed, and the report recommended an extension of Level 
certi?cation for 14 working days only. There was no evidence that the 2010 Team members
discussed the removal of the ?substantial compliance? ?nding or the removal of the
recommendation for a one-year certi?cation. Although Dr. Levendusky rati?ed the changes
made by Attorney Meacham, it is clear that DDS, and not the 2010 Team, was the driving force
behind the changes to the 2010 Report.

Page 46 of 50

 

 

 

 

Just as it had in the 19905, DDS in 2010 again hired an independent review team, but the
resulting 2010 Team report was anything but independent. Dr. Levendusky even admitted in his
testimony that ?to some extent? he ?handed over to Commissioner Howe and [Attorney]
Meacham the drafting of the 2010 certi?cation report.? involvement in and in?uence over
what was supposed to be an independent certi?cation team report constitutes bad faith regulation
of RC. Until this litigation, JRC was completely unaware that the 2010 Team?s version of the
report prior to the changes made by Attorney Meacham and Commissioner Howe had concluded
that?J RC was in substantial compliance with prior conditions and recommended certi?cation for
one year. Like the suppression of the re-study report favorable to BRI that occurred in the 19805,
DDS in 2010 suppressed ?ndings and recommendations favorable to JRC by removing them
from the ?nal version of the Report of the 2010 Level Certi?cation Team.

In addition to the above, the Court ?nds that by accepting certain recommendations of the
2010 Level Certi?cation Team, DDS impermissiny made treatment decisions for RC clients,
including by instructing JRC to: ?eliminate the use of GED for infrequent seemingly minor
behaviors,? eliminate the use of GED for certain inappropriate behaviors such as inappropriate
urination or defecation; ?[u]se 1 GED per ?urry if instances of multiple applications are
associated with a series of targeted behaviors occurring together in a short space of time,? and
?develop plans to fade or discontinue use of the approved Level interventions? for individuals
on a Level program for more than two years"?without clear documentation of substantial
incremental reductions in targeted behaviors.? This conduct is similar to that of OFC leading up
to the Consent Decree, when it issued decisions limiting available treatment methods available to
BRI. The Court found then that these decisions by OFC effectively constituted treatment
decisions.

Although bad faith conduct exhibited during 2010 was not as egregious as its
conduct during the early 19903, DDS was on notice since at least 1995, if not since the execution
of the Consent Decree in 1987, that its regulation of JRC had been problematic in the past and
would be scrutinized.

Defendants are correct that JRC has not ?led a contempt action against DDS since the
1995 proceedings alleging bad faith regulation by DDS. However, I RC was not required to do
so, and its decision not to initiate a contempt action does not render regulation of RC as
having been conducted in good faith. 

During the 19903 and again during 2010, DDS had engaged in some of the same types of
bad faith conduct in its regulation of RC as the Consent Decree was designed to prevent and
DDS made treatment decisions for RC clients, contrary to the directive in Judge Rotenberg
Educational Center, Inc., 424 Mass. at 443 (1997) providing that ?the courts were to make the
ultimate decision regarding individual treatment programs.? Accordingly, there has not been a
signi?cant change in fact since the entry of the Consent Decree with respect to the way DDS is
regulating JRC. The 2010 certi?cation process, which took place more than 20 years after the

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entry of the Consent Decree, demonstrates that the purpose of the Consent Decree has not been
achieved.

if. Standard of Care/Pro?ssional Consensus Regarding Aversives

All parties agree that physical aversive treatment is controversial and that JRC is the only
facility in the United States that uses electric skin shock aversive treatment for individuals with
developmental and intellectual disabilities. Nevertheless, the evidence at the hearing did not
establish that there is a professional consensus with respect to whether Level aversive
treatment conforms to the accepted standard of care.

Although several clinician witnesses called by Defendants testi?ed credibly that the
facilities with which they have been af?liated do not or did not use skin shock as aversive
conditioning for challenging behavior and that they were unaware of any facilities other than
I RC using such treatment on individuals with developmental disabilities, this testimony does not
render the use of Level aversive treatment per se outside the standard of care. As Dr. Hamad
had originally stated in his memo, the fact that RC is the only facility using such treatment
could be because ?the number of persons who conceivably might require such treatment
approach was so small that one program for the entire nation would be more than suf?cient to
meet any potential need.?

Some clinicians called as witnesses by Defendants opined that Level aversive
treatment stands outside the standard of care. These clinicians were sincere in their opinion and
the Court does not doubt that they have justi?able reasons for holding this opinion. However,
credible evidence at the hearing indicated there is not a professional consensus on this issue. 
ath'iS 
uSe.__Df    an. fof?eatingfingdividuals?Witli
?rbibtemati?gi??havi?irsj Dr. Foxx, one of the national experts consulted by Dr. Hamad in
preparation of his memo, told Dr. Hamad that he believed there were a small number of cases
where aversive therapy should be considered. Dr. Levendusky, who has chaired the Level 
Certi?cation Team for several years and who, in that capacity, has had extensive contacts with
RC, testi?ed that he believes that in certain situations, JRC could be harmed if its ability to use
the GED device Were taken away, and that there is a role for Level aversive treatment ?when
it?s totally and unequivocally been shown that that is the only choice.? Even Secretary Bigby
wrote in a 2008 memo to Governor Patrick that ?[a]versives have been a mostly accepted part of
behavioral interventions with individuals engaged in violent or severe self-injurious behavior for
some time.?

 

An email chain between members of the PBS Advisory Subcommittee convened by DDS
to make recommendations to DDS for implementing PBS also indicated hesitation among the
subcommittee members to eliminate the availability of aversive treatment. Dr. Waters, one of the
subcommittee members, pondered in an email whether we have an individual who engages
in assaultive behavior that permanently dis?gures others, and we have an aversive consequence

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that brings the behavior to near-zero rates, do we st0p consequating the once every three months
or once every ?ve years occurrence of the behavior?? In the same email chain, Dr. White called
eliminating aversive treatment ?neither ?real world? nor effective.? Dr. Woolf expressed concern
in an email about the ?very small minority of clients that may require a positive punishment
procedure described as a level intervention.? He went on to write that ?[f]ailing to use these
procedures that research has shown to be effective in suppressing self-destructive behavior that
have 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.?

Moreover, evidence at the hearing indicated that for many JRC students, physical
aversive treatment has been effective at treating the behavior that brought them to I RC. As of
April 30, 2015, the average occurrence of behaviors categorized as ?aggressive? fell
from 308.54 per client pre?GED-to 4.71 per client after the start of GED treatment. The average
occurrence of behaviors of these clients categorized as ?health dangerous? fell from
457.52 pre-GED to 7.99 after the start of GED treatment. Several former RC clients who
received Level aversive treatment and parents of RC students receiving Level aversive
treatment offered credible testimony at the hearing, crediting the aversive treatment received at
RC with the students? signi?cant improvement in their problematic behaviors. Notwithstanding
the above data and testimony, 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.

Defendants offered credible testimony from Drs. Mikkelsen, Geller, and McCracken that
signi?cant developments in medications have been made since the 19805 and that
medications that were not available in the 1980s could now be prescribed to treat the behaviors
exhibited by RC clients. Unquestionably, approach does not embrace the use of
drugs as part of its treatment. RC says as much in its policy statement. It may very
well behoove JRC to review recent studies and developments regarding medication
and explore whether its policy should be revisited. However, there was no evidence at the
hearing that for any or all of the RC clients currently receiving Level aversive treatment,
either a particular drug or drugs generally, would be more effective
than their current treatment. In addition, drugs have the potential for side effects,
some of which can be quite serious.

Defendants have failed to demonstrate that there is now a professional consensus that the
Level aversive treatment used at JRC does not conform to the accepted standard of care for
treating individuals with intellectual and developmental disabilities. Accordingly, there has not
been a signi?cant change in fact since the entry of the Consent Decree with respect to a
professional consensus regarding Level aversive treatment.

The Court notes that is not persuaded by Defendants? contention that the promulgation of
the 2011 regulations constitutes a signi?cant change in law warranting the Consent Decree being

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vacated. As stated above in the ?ndings, the regulations were promulgated by DDS and do not
prevent JRC clients from receiving Level aversive treatment consistent with the terms of the
1987 Consent Decree to which it is a party by succession to OFC.

Reasonable Time Under Mass. R. Civ. P. 60 

Because the Court has found that no signi?cant change in facts or law exists warranting
the Consent Decree being vacated, the Court need not reach the issue of Whether the motion was
?led in a reasonable time as required by Mass. R. Civ. P. 60 However, the Court notes that
this motion was ?led in 2013, long after the existence of both reasons that Defendants proffer for
the Consent Decree being vacated. The achievement of the purpose of the Consent Decree, to
stop the bad faith regulatory and licensing activities of UPC, arguably would have been complete
either within a few years of the Consent Decree (which, admittedly, was intended to be time-
limited) or shortly after the receivership ended in 2006. The argument that a professional
consensus existed that Level aversive treatment does not conform to the accepted standard of
care would arguably have existed as of December 2008, when Assistant Secretary McGuire sent
a memo to Secretary Bigby following the completion of the policy review stating there was a
?lack of scienti?c or clinical practice support for? the treatment. Defendants did not ?le the
motion until February 14, 2013, more than four years after the latter of these occurrences.

Dated: June 20, 2018 

Hon. Katherine A. Field, First Justice
Bristol Probate and Family Court

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