Judge Rotenberg Educational Center, Inc. v. Commissioner of the Dept. of Mental Retardation

Decision Date13 March 1997
Docket NumberNo. 1,1
Citation677 N.E.2d 127,424 Mass. 430
Parties, 9 NDLR P 274 The JUDGE ROTENBERG EDUCATIONAL CENTER, INC., & others 1 v. COMMISSIONER OF THE DEPARTMENT OF MENTAL RETARDATION (). 2
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Judith S. Yogman, Assistant Attorney General (Lucy A. Wall, Assistant Attorney General, with her) for the Commissioner of the Department of Mental Retardation.

Roderick MacLeish, Jr., Boston (Peter F. Carr, II, with him), for the Judge Rotenberg Educational Center, Inc.

Eugene R. Curry, for the class of students, parents & guardians.

C. Michele Dorsey (Paul A. Cataldo, Franklin, with her), for the class of students.

The following submitted briefs for amici curiae:

Cathy E. Costanzo, Northampton, John Coyne, Richard Ames, Boston, and Robert D. Fleischner, Northampton, for the guardians.

Timothy A. Sindelar, Boston, and Allen M. Karon, Canton, for National Association of Protection and Advocacy Systems & others.

Janet Cohan, Whately, for Advocacy Network, Inc., & another.

Ralph T. Calderaro, Kingston, Special Assistant Attorney General, for Disabled Persons Protection Commission.

Before ABRAMS, LYNCH, GREANEY, FRIED and MARSHALL, JJ.

LYNCH, Justice.

The commissioner of the Department of Mental Retardation (department) appeals from a final judgment of the Bristol County Probate and Family Court finding the department in contempt of a court-ordered settlement agreement entered into by the Judge Rotenberg Educational Center, Inc. (JRC), the patients at JRC, their parents and guardians, and the office for children (OFC). 3 After trial, the judge concluded that the department had violated the settlement agreement; enjoined the department from failing to comply with the terms of the agreement; appointed a receiver to administer, manage, and operate the department in all of its relationships with JRC; and awarded attorney's fees to JRC, counsel for the parents, and counsel for the class of patients. 4 We granted the department's application for direct appellate review.

This contempt action has its origin in a lawsuit brought in 1986 by JRC, the class of all patients at JRC, their parents and guardians, against OFC alleging that OFC had engaged in bad faith regulatory and licensing activities and violated the civil rights of the patients. On June 4, 1986, the judge entered a preliminary injunction enjoining OFC from enforcing its orders and concluded in extensive findings that the director of OFC had engaged in bad faith regulation of JRC, and that her termination of JRC's treatment procedures was without medical support, leaving the program an "empty shell for those [patients] who require aversives as part of their treatment." The judge further found that the director of OFC attempted to hide the lack of clinical support for her decision by altering her own agency's laudatory report of JRC, and by sending an evaluation team, biased against the use of aversive therapy, to conduct an "objective" evaluation of the JRC program. The judge therefore found that the director's orders constituted arbitrary treatment decisions that "play[ed] 'Russian Roulette' with the lives and safety of the [patients] at [JRC]."

The preliminary injunction was upheld by a single justice of the Appeals Court, who ruled that there was ample evidence to support both the judge's entry of injunctive relief and his conclusion that the director of OFC acted in "bad faith in [her] handling of the status of [JRC's] license and its treatment programs." Subsequently, the plaintiff class, JRC, and OFC entered into the settlement agreement which forms the basis of this appeal. 5 The judge approved the settlement agreement on January 7, 1987, and incorporated it as an order of the court. 6 In 1993, JRC brought this contempt action, alleging that the department had repeatedly violated the settlement agreement.

The following facts are derived from the judge's findings, which she made after a thirteen-day trial. 7

In 1991, JRC applied to be recertified in the use of "Level III" aversive behavior modification techniques. 8 The department assigned a team to evaluate the application and to make a site visit to JRC. The team visited JRC on December 9 and 10, 1991, reviewed voluminous materials, and met with a number of employees at JRC. An assistant general counsel of the department who was a member of the team prepared a report dated December 21, 1991. The report recommended that JRC be recertified to employ aversive procedures, subject to five conditions which were characterized as "minor." The report included compliments about JRC which "concluded that the programs at JRC were in conformity with [the department] regulations and the directives of the Bristol County Probate Court."

Almost six months after the report was submitted the department's director of quality assurance notified the executive director of JRC, that the department had "accepted the recommendations of the team." The department, however, did not grant certification to JRC at this time even though that was the recommendation of the review team.

One month after JRC received the letter stating that the recommendations of the review team had been accepted, the department's director of quality assurance sent another letter to JRC's executive director stating that two new behavioral programs, the "Specialized Food Program" 9 and the "GED Program," 10 had been brought to her attention and needed to be reviewed as part of the recertification process. A second review team, which also included the department's assistant general counsel, was sent to JRC for a site visit and concluded that JRC had complied with all five prior conditions of certification in the December 21, 1991, report and that there were no adverse health effects from either the "GED-4" 11 or the Specialized Food Program. The judge found that "[i]t was clear that the team found JRC to be in full compliance with the regulations." Indeed the team reported that "there is no reason to change the previous recommendation that JRC retain its certification to employ Level III interventions in behavior modification programs."

Despite the recommendations of the review teams, the department did not certify JRC. No one in the department spoke to the assistant general counsel about the 1993 report, and, to his knowledge, no one in the department spoke to any members of the team concerning the 1993 report. The commissioner, however, asserted that the 1993 certification team report was not complete because it had not been signed by one member of the review team who had since left the department. The judge also found that neither the 1991 report nor the 1993 report was ever read by the commissioner or the assistant commissioner for quality assurance. Nevertheless, some of the information found in the certification team reports was used in communications to parents, funding agencies, and the court. Despite using this information, however, the commissioner "never revealed the existence of or sent a copy of the 1991 or 1993 certification reports to the Court Monitor, JRC, the funding agencies of JRC, the parents of JRC [patients], or the Court." Rather, the department, led by the commissioner, began a regulatory barrage of JRC that was to last two years. 12

On August 6, 1993, the department mailed the first of several letters to JRC. While the letter purported to grant "interim certification" to JRC, the judge found that "it was in reality the first volley in a series of actions designed to put JRC out of business." The letter, which followed the favorable report of the 1993 review team by just a few weeks, stated that the department had found "continued and repeated noncompliance [by JRC] with the requirements of [department] regulations."

Following the August 6, letter, JRC requested a meeting with the department and the court monitor pursuant to a provision in the settlement agreement. Between 1987 and at least as late as March, 1993, JRC and the department utilized a court monitor appointed pursuant to the settlement agreement to settle disputes. However, following the August 6, letter, the department declined to meet with JRC if the court monitor was to participate. After JRC's attempt at mediation failed, JRC then responded to the August 6, letter on August 27, 1993, by delivering a written point-by-point refutation of the allegations contained in the letter of August 6, accompanied by three cubic feet of documentation.

On August 31, 1993, the department sent JRC another letter stating that the department had learned from a source "other than JRC" that there were problems with misfirings of the GED. JRC, the commissioner wrote, was "in violation of [the department] regulations" but the department would "give [JRC] further opportunity to provide information." The letter set forth a number of conditions that JRC was required to meet to receive interim certification. One of the conditions, condition 1, restricted the use of certain procedures at JRC. The judge found that this "directly contradicted orders of this Court" and that the commissioner "administratively overruled outstanding orders of this Court" in violation of the settlement agreement.

Another condition of the letter, condition 10, required JRC to notify all funding sources that there must be in place within sixty days an emergency plan to address the funding and logistics of any unexpected medical, personal, or programmatic situations which JRC deemed were beyond its capacity to address. The condition went on to state that the plans "must provide evidence of the funder's ability to immediately provide all needed services for such clients so as to ensure that the client is not substantially endangered." The commissioner testified that this condition was based on prior situations where JRC had unexpectedly discharged patients. The commissioner, however, could only identify one such...

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