Judge Rotenberg Educ. Ctr., Inc. v. Comm'r of the Dep't of Developmental Servs.

492 Mass. 772

215 N.E.3d 1119

JUDGE ROTENBERG EDUCATIONAL CENTER, INC.,¹ & others²

v.COMMISSIONER OF the DEPARTMENT OF DEVELOPMENTAL SERVICES & another.³

SJC-13298

Supreme Judicial Court of Massachusetts, Bristol.

Argued May 3, 2023

Decided September 7, 2023

Timothy J. Casey, Assistant Attorney General (Christine Fimognari, Assistant Attorney General, also present) for the defendants.

Max D. Stern (Joseph M. Cacace, Alexandra H. Deal, Boston, & C. Michele Dorsey, Scituate, also present) for Leo Soucy & others.

Michael P. Flammia (Christian B.W. Stephens, Matthew D. Rodgers, & Trevin C. Schmidt also present) Boston, for Judge Rotenberg Educational Center, Inc.

Kathryn Rucker, Mona Igram, Steven J. Schwartz, & Richard M. Glassman, for The Arc of Massachusetts & others, amici curiae, submitted a brief.

Felicia H. Ellsworth, Boston & Charles C. Kelsh, for American Academy of Pediatrics & others, amici curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, & Wendlandt, JJ.

KAFKER, J.

The instant appeal concerns a long-standing controversy over the treatment and welfare of a particularly vulnerable population living within our Commonwealth. These individuals suffer from severe developmental and intellectual disabilities that, left untreated, cause them to engage in grievous self-harm, maiming, and other life-threatening behaviors. They reside in small group homes under the care of Judge Rotenberg Educational Center, Inc. (JRC), a facility that employs the use of aversive interventions -- most notably, electric skin shock -- as part of its treatment approach to severe behavioral issues. JRC, which stands as the sole facility in the country to use electric skin shock on the developmentally disabled, currently operates under the protection of a thirty-six year old consent decree. That decree was entered, and has remained in place, after State agencies resorted to pretextual and bad faith regulatory practices to disrupt JRC's operations in the 1980s and 1990s. The State agencies that remain bound by the decree have since moved for its termination. That motion was denied by a judge in the Probate and Family Court (Probate Court), and the matter now comes before us on appeal.

For many mental health advocates, the controversial interventions used by JRC sound reminiscent of the institutionalization and abuse inflicted on the developmentally disabled in decades past. Yet the families of these clients claim that JRC has been singularly effective in preventing their children from engaging in severely self-injurious and destructive behaviors, such as gouging their own eyes, puncturing their own bodily orifices, and violently attacking others. These families characterize JRC's methods as a treatment of last resort -- one sought after alternative treatments either failed to protect their children from self-harm or left them continually sedated and restrained. This case thus involves a heart-wrenching issue: continue to protect a controversial practice that has widely been criticized, or pave the way for its prohibition at the risk of subjecting these vulnerable patients to a life of sedation and restraint, or extreme self-injury.

The propriety of this controversial treatment does not reach us in a vacuum, however. The record before us contains extensive findings of fact made by the judge below, based on a forty-four day evidentiary hearing that closed in 2016, with 788 exhibits and nearly thirty witnesses. Among those findings was the judge's conclusion that the Commonwealth had yet again resorted to bad faith regulation of JRC in 2010, and that, as of 2016, the medical community remained divided as to whether JRC's treatment approach fell outside the professional standard of care for the most severely disabled patients.

It is particularly troubling that the case is before us on an evidentiary record that closed seven years ago, especially given the fact-intensive nature of the issues at stake. Nonetheless, because the parties have urged us to decide this appeal without remanding for additional findings, we assess the parties’ arguments on the record we have been given. That record compels us to conclude that the defendants have failed to demonstrate that the judge's findings were clearly erroneous, based on the evidence before her in 2016.

We stress, however, that our conclusion does not foreclose the possibility that new developments will occur, or have occurred, bearing on these factual issues. Moreover, nothing in our decision or the consent decree prevents the Department of Developmental Services (department) from exercising its existing authority to contest the use of electric skin shock on individual JRC patients at their yearly substituted judgment hearings in the Probate Court. Nor is the department precluded from enforcing the consent decree's requirement that electric skin shock be used only where it is the least intrusive, most appropriate treatment. The fact that the department has largely chosen not to do so informs the context within which we rule on this issue. That being said, today we decide only the narrow question of whether the judge below abused her discretion in concluding that the department failed to establish that the consent decree should be terminated based on the evidentiary record before the Probate Court in 2016. We conclude that she did not, and thus affirm the denial of the defendants’ motion.⁴

1. Background. We summarize the relevant factual findings of the judge below, supplemented where necessary by undisputed evidence in the record. See Connor v. Benedict, 481 Mass. 567, 568, 118 N.E.3d 96 (2019). Because the record before the Probate Court closed in 2016, any references to "current" practices, procedures, or statistics is only current as to that date, unless otherwise noted.

a. JRC and its treatment methods. Since 1975, JRC⁵ has operated a residential program in the Commonwealth to provide treatment and educational services for individuals with intellectual disabilities, developmental disabilities, and behavior disorders. At present, JRC operates forty-four houses in the Commonwealth, where clients live in a residential setting. The judge below credited testimony that patients are housed in a very humane environment and the staff is well trained. As of March 2015, the total number of clients enrolled at JRC was 244.

Many of the developmentally disabled patients at JRC suffer from severely problematic behaviors, including aggressive, destructive, and self-injurious behaviors. Indeed, a number of patients have come to JRC after being expelled from other facilities unable to address the severity of their behavioral issues. For some of these patients, prior programs had resorted to restraint or heavy sedation in an attempt to manage their harmful behaviors. Because JRC generally does not turn patients away, for numerous families, JRC was the only program willing to accept their son or daughter.

Unlike other facilities, JRC has a policy of avoiding or minimizing the use of psychotropic medication to treat its patients. Instead, JRC has long relied upon applied behavior analysis (ABA) to treat patients. This involves conducting a "functional behavior assessment," i.e., studying the relationship between problematic behaviors and the conditions that precede them. JRC then uses positive reinforcement, e.g., rewards, to encourage desirable behaviors and negative consequences, or "aversives," to discourage undesirable behaviors. Typically, JRC relies in the first instance on positive reinforcement procedures alone. However, if JRC's positive programming fails to accomplish a patient's treatment goals, or if it does not effectively treat the patient's problematic behavior, the family is given the option of including aversives as part of their son or daughter's treatment plan. At the evidentiary hearing, several former JRC patients and parents credited JRC's aversive treatments with significantly improving these patients’ problematic behaviors.

At the time this litigation first began in 1986, JRC employed a variety of physical aversives in a hierarchical fashion with increasing levels of intrusiveness. See Natrona County Sch. Dist. No. 1 v. McKnight, 764 P.2d 1039, 1045 n.4 (Wyo. 1988) (listing hierarchy of aversives utilized at JRC in 1985). In the years after the consent decree was entered, JRC shifted away from this existing hierarchy of aversives in favor of using the "Graduated Electronic Decelerator" (GED), a device that administers a two-second electric shock to the surface of the skin, usually on the arm or the leg. At present, the GED is the primary physical aversive used at JRC. JRC utilizes two versions of the device: the GED-3A and the GED-4. The former delivers a current of 15.25 milliamps, and the latter delivers a current of 41 milliamps.

JRC administers the GED to discourage specific problematic behaviors. When a JRC staff member observes one of these behaviors, a second staff member verifies that the behavior is one for which use of the GED has been authorized pursuant to a substituted judgment action, see note 6, infra, and the first staff member then activates the GED. Normal application of the device results in transient pain.

Before a patient may be treated with the GED, a JRC clinician must first develop a treatment plan. Each plan is reviewed and approved by JRC clinicians, as well as a human rights committee and a peer review committee. After JRC develops the treatment plan, it must petition the Probate Court for substituted judgment⁶ authorization to use the GED on that patient. Once the Probate Court has approved the plan, JRC must petition for reauthorization on an annual basis to continue treating the patient with the GED. In the treatment plan provided to the Probate Court, JRC is required to identify the behaviors that it intends to target with the GED, and a JRC clinician must aver that the GED is the least intrusive, most effective treatment for the...