Judge Rotenberg Educational Center, Inc. v. Commissioner of the Department of Developmental Services

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SJC-13298
JUDGE ROTENBERG EDUCATIONAL CENTER, INC.,1 & others2 vs.
COMMISSIONER OF THE DEPARTMENT OF DEVELOPMENTAL SERVICES
& another.3
Bristol. May 3, 2023. - September 7, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker,
& Wendlandt, JJ.
Developmentally Disabled Person. Department of Developmental
Services. Probate Court, Revocation of decree, Judicial
discretion. Judgment, Relief from judgment. Practice,
Civil, Relief from judgment. Regulation. Administrative
Law, Regulations. Constitutional Law, Separation of
powers.
1 Formerly known as Behavior Research Institute, Inc.
2 Leo Soucy, individually and as parent and next friend of
Brendon Soucy; Peter Biscardi, individually and as parent and
next friend of P.J. Biscardi; and both as representatives of the
class of all patients at Judge Rotenberg Educational Center,
Inc. (JRC), their parents, and their guardians. The former
executive director of JRC was originally listed as a plaintiff
as well.
3 Commissioner of the Department of Early Education and
Care. The director of the Office for Children, the predecessor
in interest to the defendants, was originally listed as a
defendant in her ex officio capacity.
2
Civil action commenced in the Bristol Division of the
Probate and Family Court Department on February 28, 1986.
A motion to terminate a consent decree, filed on February
14, 2013, was heard by Katherine A. Field, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Timothy J. Casey, Assistant Attorney General (Christine
Fimognari, Assistant Attorney General, also present) for the
defendants.
Max D. Stern (Joseph M. Cacace, Alexandra H. Deal, & C.
Michele Dorsey also present) for Leo Soucy & others.
Michael P. Flammia (Christian B.W. Stephens, Matthew D.
Rodgers, & Trevin C. Schmidt also present) for Judge Rotenberg
Educational Center, Inc.
Kathryn Rucker, Mona Igram, Steven J. Schwartz, & Richard
M. Glassman, for The Arc of Massachusetts & others, amici
curiae, submitted a brief.
Felicia H. Ellsworth & Charles C. Kelsh, for American
Academy of Pediatrics & others, amici curiae, submitted a brief.
KAFKER, J. The instant appeal concerns a long-standing
controversy over the treatment and welfare of a particularly
vulnerable population living within our Commonwealth. These
individuals suffer from severe developmental and intellectual
disabilities that, left untreated, cause them to engage in
grievous self-harm, maiming, and other life-threatening
behaviors. They reside in small group homes under the care of
Judge Rotenberg Educational Center, Inc. (JRC), a facility that
employs the use of aversive interventions -- most notably,
electric skin shock -- as part of its treatment approach to
severe behavioral issues. JRC, which stands as the sole
3
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
4
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
5
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
4 We acknowledge the amicus brief submitted by the American
Academy of Pediatrics, the American Association on Intellectual
and Developmental Disabilities, the National Association of
State Directors of Developmental Disabilities Services, the
National Association of State Directors of Special Education,
the International Association for the Scientific Study of
Intellectual and Developmental Disabilities, the National
Association for the Dually Diagnosed, and the Massachusetts
Chapter of the American Academy of Pediatrics, as well as the
amicus brief submitted by The Arc of Massachusetts, the
Disability Policy Consortium, the Massachusetts Developmental
Disability Council, the Federation for Children with Special
Needs, and MassFamilies. In addition, we allow the plaintiffs'
joint motion for leave to respond to the briefs of the amici
6
1. Background. We summarize the relevant factual findings
of the judge below, supplemented where necessary by undisputed
evidence in the record. See Connor v. Benedict, 481 Mass. 567,
568 (2019). Because the record before the Probate Court closed
in 2016, any references to "current" practices, procedures, or
statistics is only current as to that date, unless otherwise
noted.
a. JRC and its treatment methods. Since 1975, 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,
curiae. See Mass. R. A. P. 17 (b), as appearing in 481 Mass.
1635 (2019).
5 At the time of its founding, JRC was known as Behavior
Research Institute, Inc. See note 1, supra. For the sake of
consistency, we shall refer to the facility as JRC throughout
this decision.
7
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
8
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.
9
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 patient in question. The department
has the ability to oppose the use of the GED on a particular
patient at these yearly substituted judgment proceedings, but,
in practice, the department rarely does so. In one 2014
proceeding where the department did choose to participate, the
6 Substituted judgment proceedings are used as a "means by
which incompetents may exercise their right to refuse or
terminate treatment. . . . The judge, after hearing, must try
to identify the choice which would be made by the incompetent
person, if that person were competent, taking into account the
present and future incompetency of the individual as one of the
factors which would necessarily enter into the decision-making
process of the competent person" (quotation and citation
omitted). Guardianship of Doe, 411 Mass. 512, 518 (1992).
10
Probate Court ultimately sided with the department and declined
to authorize the use of the GED on that patient.
As of 2014, thirty percent of JRC's patients had treatment
plans that included the use of court-authorized aversives. The
remaining seventy percent were treated using positive
programming alone. As of the close of evidence in 2016, few JRC
patients treated with the GED were minors. Counsel for the
defendants has since represented to this court that there are
currently no children receiving the GED as part of their
treatment plan.
b. History of current litigation. The procedural history
of this litigation began almost forty years ago, and the matter
last came before this court in 1997. See Judge Rotenberg Educ.
Ctr., Inc. v. Commissioner of the Dep't of Mental Retardation
(No. 1), 424 Mass. 430 (JRC I), S.C., 424 Mass. 471, 424 Mass.
473, and 424 Mass. 476 (1997). We need not repeat the entire
history of this case, much of which is covered in our prior
decision. See id. at 433-442. In short, this litigation began
after the Office for Children (OFC) issued a set of emergency
orders in 1985 requiring JRC to immediately cease the use of
physical aversive treatments and to halt the intake of new
patients.7 A judge in the Probate Court would later find that
7 Because JRC provided treatment to children with special
needs, in a full-time residential setting, it was at that time
11
OFC had issued these orders "based upon no medical foundation,"
and that OFC attempted to hide this fact by retroactively
altering a report that had been "laudatory to [JRC] in all
substantial respects."
In response to the emergency orders, JRC and a class
consisting of all JRC patients and their parents and guardians
filed suit, alleging various constitutional and civil rights
violations. Thereafter, a judge in the Probate Court entered a
preliminary injunction enjoining OFC from enforcing its orders
and found that OFC had engaged in bad faith regulation of JRC.
The parties subsequently reached a settlement agreement, and on
January 7, 1987, the Probate Court approved and incorporated the
agreement as an order of the Probate Court (consent decree). As
part of the settlement agreement, licensing responsibility for
JRC was transferred from OFC to the Department of Mental Health;
later, that responsibility was transferred to the Department of
Developmental Services.8
required to obtain a license from the Office for Children (OFC).
See G. L. c. 28A, §§ 9, 11, as amended through St. 1981, c. 726,
§ 1. OFC is now known as the Department of Early Education and
Care (DEEC). See Commonwealth v. Power, 76 Mass. App. Ct. 398,
400 n.2 (2010). DEEC is the other named defendant in this
appeal.
8 At the time that the Department of Developmental Services
(department) became a party to the case, it was known as the
Department of Mental Retardation. See G. L. c. 19B, § 1, as
amended through St. 2008, c. 182, § 9.
12
The consent decree contained a number of provisions, which
are discussed at length in JRC I, 424 Mass. at 433 n.5, 443-445,
448, and included a requirement that both parties act in good
faith. Another provision required JRC to obtain authorization
from the Probate Court, by way of substituted judgment
proceedings, before it could employ physical aversives in the
individual treatment plan of a client unable to give consent.
This was the only provision that was explicitly designed to
survive the termination of the consent decree. The decree
called for compliance reviews to occur at six-month intervals,
with the decree to terminate automatically after the second such
review "unless the [Probate] Court, for good cause shown related
to the terms or substance of [the settlement] agreement, orders
otherwise." The Probate Court subsequently issued an order on
July 7, 1988, extending the settlement agreement indefinitely.
No party objected to this extension.
Shortly after the consent decree was entered in 1987,
regulations were promulgated to govern the appropriate use of
physical aversives. The regulations classified aversive
interventions into one of three "levels," depending on severity.
See 104 Code Mass. Regs. § 20.15(3) (1987). Level three was
comprised of the most severe aversive treatments, including any
intervention that "involve[d] the contingent application of
physical contact aversive stimuli" or "pose[d] a significant
13
risk of physical or psychological harm to the individual." See
104 Code Mass. Regs. § 20.15(3)(d). Any program seeking to use
level three aversives was required to apply for a special
certification from the department.9 See 104 Code Mass. Regs.
§ 20.15(4)(f) (1987). After conducting a review and inspection
of the program, the department would grant, grant with
conditions, or deny the program a level three certification for
a period not to exceed two years. See 104 Code Mass. Regs.
§ 20.15(4)(f)(7),(9).
The regulations further specified that a program would only
be eligible to receive a certification for the use of level
three aversives if, "prior to the effective date of this
regulation, . . . the program had been using one or more level
III interventions pursuant to a Behavior Modification plan for
one or more clients of the program." See 104 Code Mass. Regs.
§ 20.15(4)(f)(11). Additionally, and in accord with the consent
decree, level three interventions could not be used on a patient
unable to provide consent, absent authorization from the Probate
Court, obtained by way of a substituted judgment proceeding.
See 104 Code Mass. Regs. § 20.15(4)(e) (1987). Moreover, these
9 At the time the regulations were first promulgated, the
Department of Mental Health was the agency responsible for
certifying programs for use of level three aversives. See 104
Code Mass. Regs. §§ 2.02(2), 20.15(4)(f) (1987). This
responsibility was subsequently transferred to the Department of
Developmental Services.
14
interventions could only be used "to address extraordinarily
difficult or dangerous behavioral problems that significantly
interfere with appropriate behavior and or the learning of
appropriate and useful skills and that have seriously harmed or
are likely to seriously harm the individual or others." See 104
Code Mass. Regs. § 20.15(4)(b)(5) (1987). JRC is the only
program in the Commonwealth certified to use level three
aversives.10
In 1993, six years after the consent decree was entered,
the department launched a campaign to "disrupt the operations of
JRC by every conceivable means," with the intent of putting JRC
out of business. See JRC I, 424 Mass. at 454. This included
"interfering with JRC's relationships with funding agencies and
JRC's fiscal operations," as well as imposing "a severe and
essentially constant burden on the JRC staff by having to
respond to an unrelenting stream of bad faith regulatory
10It should be noted, however, that there are references in
the record to other facilities that have, at various times, used
a level three aversive because they employed time-outs beyond
fifteen minutes. See 104 Code Mass. Regs. § 20.15(3)(d)(2)
(1987) (defining level three aversives to include time-outs in
excess of fifteen minutes). See also Judge Rotenberg Educ.
Ctr., Inc. v. Commissioner of the Dep't of Mental Retardation
(No. 1), 424 Mass. 430, 447 n.20 (JRC I), S.C., 424 Mass. 471,
424 Mass. 473, and 424 Mass. 476 (1997) (noting that department
had permitted use of aversive therapies on individual patients
at various facilities, even though department official conceded
that "there is no authority in the regulations for approval of
Level III procedures 'in the absence of a certification as a
program'").
15
demands" made without justification. Id. at 456-457. At one
point, the department ordered JRC to discontinue level three
aversives for six patients, and later, it decertified JRC as a
provider of level three aversives altogether. The department's
actions led JRC to file a complaint alleging that the department
was in contempt of the consent decree.
After a thirteen-day trial, a judge in the Probate Court
found that the department had engaged in bad faith regulation of
JRC, held the department in contempt of the consent decree, and
placed it in receivership to oversee and manage its interactions
with JRC. This court affirmed the finding of contempt on
appeal, but narrowed the scope of the receivership. See id. at
463, 466-467. In 2003, the parties agreed to a winding down of
the receivership. By order of the Probate Court, the
receivership came to an end in 2006, thereby restoring the
department's regulatory oversight of JRC. The order did not,
however, terminate the consent decree.
c. Department's regulatory conduct postreceivership. In
August 2007, a former JRC resident called the facility,
impersonated a staff member over the telephone, and ordered JRC
employees to administer dozens of electric shocks to two
patients in the middle of the night. The caller also ordered
the employees to place a third patient on a four-point restraint
16
board, despite the fact that this was not authorized by the
patient's treatment plan.
In the wake of the incident, JRC was investigated by the
department, along with a number of other entities, including the
Department of Social Services, the Department of Early Education
and Care, the Disabled Persons Protection Commission, and an
independent monitor. These investigations identified a number
of issues that contributed to this horrible incident, and the
department issued an action plan to JRC in early 2008 requiring
the facility to, inter alia, ensure that staff personally
witness the targeted behavior before using the GED, and minimize
the time between observing the behavior and administering the
GED.
In January 2008, the Secretary of the Executive Office of
Health and Human Services (EOHHS), JudyAnn Bigby, sent a
memorandum to Governor Deval Patrick with recommendations for
ways in which the administration could "change the State's
policy toward JRC without running afoul of the [consent
decree]." Bigby made clear that she was "personally outraged by
the continued practice of electric skin shock therapy" and
believed it to be outside the current standard of care. She
tasked EOHHS Assistant Secretary Jean McGuire with forming and
leading a clinical advisory group on the use of aversives. The
initiative resulted in a memorandum authored by one of its
17
members, Dr. Charles Hamad (Hamad memo or memo), a psychologist
at University of Massachusetts Medical School (UMass Medical).
Upon receiving Hamad's draft of the memo, McGuire suggested
a number of edits, including the minimization of one expert's
opinion that she felt "looked like a rationale for keeping one
place [that uses electric skin shock] open in the country (which
would be the one we already have)." Hamad approved McGuire's
edits, which included a new sentence stating, "In brief, our
conclusion is that neither the professional literature nor the
practice arena supports the use of aversive contingent
interventions for behavior management of people with
intellectual or other disabilities that may involve serious
behavioral problems." The final version of the Hamad memo was
attached to a subsequent policy review memorandum that McGuire
drafted and sent to Bigby in December 2008, which listed various
political and regulatory options for changing the
administration's policy toward the use of electric skin shock.
One year later, Bigby sent a memorandum to the Governor
with an update on the status of JRC since the August 2007
incident. She noted that there had been "considerable
improvement in Executive agency collaboration and oversight of
JRC, which in turn has led to noteworthy progress in JRC's
performance." She also stated that the department's level three
"certification team has recently completed a monitoring review
18
and found JRC to be in substantial compliance with previously
imposed conditions." Although Bigby reiterated her belief that
the use of aversives "does not reflect the community standard of
care or best practices," she concluded that, "at least for now,"
the administration should "continue the current close monitoring
and regulation of JRC and . . . not pursue any other options at
this time."
In May 2010, the Governor's chief legal counsel met with
representatives of advocacy groups opposed to aversive
treatments. McGuire subsequently informed the department of the
issues discussed at the meeting, including the advocates'
recommendation that the department "make every use of the
upcoming certification to assure that we are tough on /
responsive to those areas where he [sic] continues to be non-
compliant or has slipped."
The following month, the department's 2010 certification
team, headed by Dr. Philip Levendusky, completed its report on
JRC's most recent application for level three certification.
The team concluded that JRC was in "substantial compliance" with
prior conditions imposed by the department and recommended that
JRC be given a one-year recertification to use level three
aversives with certain conditions of compliance. However, in a
subsequent series of communications between Levendusky, the
department's general counsel, and the department's commissioner,
19
the 2010 report was further revised without consulting the
remaining team members. In the course of these revisions, the
department's general counsel removed the "substantial
compliance" language from the report as well as the
recommendation that JRC be issued a one-year certification. The
final, revised version of the report instead extended JRC's
existing certification by fourteen working days. Within that
time, JRC was required to submit a corrective action plan for
obtaining compliance with all of the report's conditions, and to
submit additional progress reports at forty-five-day intervals.
Following the issuance of this report, and in the course of
complying with the deadlines contained therein, JRC exchanged a
number of reports and correspondences with the department in
which JRC challenged the department's ability to impose certain
conditions, and the department rejected various of JRC's
assertions of compliance. Eventually, in the summer of 2011,
JRC and the department agreed to mediation before the former
receiver. The parties ultimately reached an agreement in July
2012 resolving their dispute.
While the mediation was still ongoing, the department
amended its behavior modification regulations to prohibit the
use of level three aversives, except for "individuals who, as of
September 1, 2011, [had] an existing court-approved treatment
plan" authorizing their use. See 115 Code Mass. Regs.
20
§ 5.14(4)(b)(4) (2011). In effect, these regulations imposed a
prospective ban on the use of level three aversives for new JRC
patients. After the regulations went into effect, the
department convened a group of experts to serve on an advisory
subcommittee charged with promulgating new guidelines for the
Statewide implementation of the department's favored treatment
approach, Positive Behavior Supports (PBS).11 In advance of the
subcommittee's discussions of the ABA literature concerning the
efficacy and acceptability of using specific procedures to
decelerate problematic behaviors, a representative of the
department informed the subcommittee co-chair that "it won't
matter whats [sic] in the literature if [the commissioner] does
not like it." Some members of the subcommittee nonetheless went
on to voice support for the use of level three aversives in
certain limited circumstances, and the group expressed
discomfort with draft guidelines that would ban specific
interventions. The department subsequently instructed the
11Positive Behavior Supports (PBS) focuses on the
conditions that precede problem behaviors and the environmental
changes that can be made to improve a client's quality of life.
The judge below found that PBS was more accurately described as
a philosophy or general approach to treatment, rather than a
subdiscipline within the field of psychology.
21
subcommittee not to address the issue of level three aversives
as part of their work.12
d. Procedural history leading to instant appeal. In 2013,
while the advisory subcommittee's discussions remained ongoing,
the defendants filed a motion in the Probate Court to terminate13
the consent decree, pursuant to Rule 60 of the Rules of the
Probate Court (2013) and Mass. R. Civ. P. 60 (b) (5), 365 Mass.
828 (1974). The department argued that termination of the
decree was warranted because the department had long since
abandoned its history of bad faith regulation, and because the
12The department went on to amend its regulations that year
to remove certain level two aversives, including procedures
requiring significant physical exercise, unpleasant sensory
stimuli like loud noises or bad tastes, and meal delays. See
115 Code Mass. Regs. § 5.14(3)(c)(1) (2013). However, it was
not until 2020 that new regulations went into effect replacing
the existing regulations governing behavior modification with a
PBS framework. See 115 Code Mass. Regs. §§ 5.14, 5.14A (2020).
13The parties have characterized the defendants' pleading
as a motion to "vacate" the consent decree. However, the
defendants' motion "did not challenge the grounds on which [the
consent decree] was earlier entered," but "sought only to
prevent its prospective application." MacDonald v. Caruso, 467
Mass. 382, 384 n.4 (2014). Accordingly, the motion is most
appropriately understood as a request to terminate, rather than
vacate, the decree. See id. See also Inmates of Suffolk County
Jail v. Rouse, 129 F.3d 649, 662 (1st Cir. 1997), cert. denied,
524 U.S. 951 (1998) ("While terminating a consent decree strips
it of future potency, the decree's past puissance is preserved
and certain of its collateral effects may endure. Vacating a
consent decree, however, wipes the slate clean, not only
rendering the decree sterile for future purposes, but also
eviscerating any collateral effects and, indeed, casting a
shadow on past actions taken under the decree's imprimatur").
22
primary physical aversive used by the facility, electric skin
shock, was outside the professional standard of care.
A judge in the Probate Court held an evidentiary hearing on
the motion, which took place over the course of forty-four days
between October 2015 and October 2016. On June 20, 2018, the
judge issued a written memorandum of decision denying the
motion. The judge found that the department had engaged in bad
faith regulation of JRC in 2010, just as it had in prior
decades. On this basis, the judge concluded that, as of 2018,
the consent decree remained necessary to protect JRC from bad
faith conduct such as had occurred eight years prior. The
judge's 2018 decision also concluded that the department had
failed to demonstrate a significant change in circumstances that
would warrant termination of the consent decree. In reaching
this conclusion, the judge found that the department had failed
to show that, as of the close of evidence in 2016, there was a
professional consensus that level three aversives were outside
the standard of care. The defendants timely filed a notice of
appeal, and the case was entered in the Appeals Court in August
23
2021.14 Thereafter, this court granted the parties' joint
application for direct appellate review.15
2. Standard of review. Rule 60 (b) (5) permits the court
to grant relief from a judgment with prospective effect where
"it is no longer equitable" for the judgment to remain in place.
This requires the moving party to demonstrate a significant
change in circumstances since the entry of the judgment that
would warrant its modification or termination. See MacDonald v.
Caruso, 467 Mass. 382, 388 (2014), and sources cited. This
standard is a flexible one, and its application depends upon the
individual facts of the case and the nature of the judgment at
issue. See Rufo v. Inmates of Suffolk County Jail, 502 U.S.
14The three-year delay between the department's notice of
appeal and the entry of this case in the Appeals Court appears
to have been due to the size of the record, compounded by delays
in receiving searchable copies of the electronic transcript
files, as well as lapses in communication between the clerk's
office of the Probate and Family Court (Probate Court), the
parties, and the stenographers.
15JRC has argued that DEEC's appeal should be dismissed
because DEEC failed to file a brief after the case had been
entered in this court. DEEC, which joined in the notice of
appeal and docketing statement, has since moved to join the
department's appellate brief. DEEC has argued that it failed
join the department's brief at the time of filing because
counsel for the defendants "mistaken[ly]" believed that DEEC had
no further obligations under the decree, given that no children
enrolled at JRC are approved for use of level three aversives.
JRC has failed to articulate any prejudice that would stem from
allowing DEEC's motion to join the department's briefing.
Accordingly, we allow DEEC's motion to join the department's
brief and decline JRC's invitation to dismiss DEEC's appeal.
24
367, 380-381 (1992). See also Alexis Lichine & Cie. v. Sacha A.
Lichine Estate Selections, Ltd, 45 F.3d 582, 586 (1st Cir.
1995). Thus, consent decrees that implicate "the supervision of
changing conduct or conditions," which "are thus provisional and
tentative," are more likely to warrant modification than consent
decrees that "give protection to rights fully accrued upon facts
so nearly permanent as to be substantially impervious to
change." Rufo, supra at 379, quoting from Justice Cardozo's
often-cited articulation of the standard in United States v.
Swift & Co., 286 U.S. 106, 114-115 (1932).
The decision whether to grant relief from judgment under
rule 60 (b) rests within the sound discretion of the trial
judge. See Atlanticare Med. Ctr. v. Division of Med.
Assistance, 485 Mass. 233, 247 (2020) (Atlanticare).
"Accordingly, the denial of a motion under Rule 60 (b) will be
set aside only on a clear showing of an abuse of discretion"
(quotation and citation omitted). Id. In effect, this means
that the decision will be affirmed unless the judge below "made
a clear error of judgment in weighing the factors relevant to
the decision . . . such that the decision falls outside the
range of reasonable alternatives" (citation omitted). Dacey v.
Burgess, 491 Mass. 311, 317 (2023). Here, the department's
argument that the judge abused her discretion is focused
primarily upon contesting two factual findings derived from the
25
evidentiary record before the Probate Court in 2016: (1) the
department's continued bad faith regulatory conduct toward JRC;
and (2) the absence of a professional consensus whether level
three aversives fall outside the accepted standard of care.
"To prevail on appeal on the basis of an assault on a
judge's factual findings is no easy matter, for we accept the
judge's findings of fact as true unless they are 'clearly
erroneous'" (citation omitted). Millennium Equity Holdings, LLC
v. Mahlowitz, 456 Mass. 627, 636 (2010). Under this "clearly
erroneous" standard, "the judge's findings come here well armed
with the buckler and shield" (alteration, quotation, and
citation omitted). JRC I, 424 Mass. at 452. That is, any
finding based partly or wholly on oral testimony will be upheld,
unless there is no evidence to support it or the reviewing court
"is left with the definite and firm conviction that a mistake
has been committed" (citation omitted). Kendall v. Selvaggio,
413 Mass. 619, 620-621 (1992). See Demoulas v. Demoulas Super
Mkts., Inc., 424 Mass. 501, 510 (1997) ("So long as the judge's
account is plausible in light of the entire record, an appellate
court should decline to reverse it"). It is not enough that
other evidence exists to support a different finding, or even
that this court might have weighed the evidence differently in
the first instance. See Brandao v. DoCanto, 80 Mass. App. Ct.
151, 154 (2011).
26
3. Timeliness of department's motion. JRC argues, as a
threshold matter, that we need not reach the merits of this
appeal because the defendants' motion to terminate the consent
decree was untimely. Although the judge below did not deny the
motion on this basis, she observed, in accord with the
plaintiffs' argument, that the motion had been filed "long after
the existence of both reasons that Defendants proffer" as
necessitating termination of the consent decree.
Motions under rule 60 (b) (5) must be filed "within a
reasonable time," determined in light of all the circumstances
of the case. Atlanticare, 485 Mass. at 247-248, quoting Mass.
R. Civ. P. 60 (b). In making this determination, "a judge may
consider the reasons for delay; the ability of the movant to
learn of the grounds earlier; prejudice to the parties, if any;
and the important interest of finality" (citation omitted).
Atlanticare, supra at 248. Where, as here, the judgment at
issue binds public officials, the court also considers the
governmental and public interests at stake. See id. See also
Shakman v. Chicago, 426 F.3d 925, 934 (7th Cir. 2005) (under
Federal analog, "any consideration of a 'reasonable time' for
filing a [Fed. R. Civ. P.] 60(b) motion with respect to the
. . . Consent Decree must take into account the nature of that
litigation as well as the resulting prejudice, if any, to the
present elected officials and the public they represent"). At
27
bottom, however, "[t]here is no set formula" for determining
reasonableness in this context. Atlanticare, supra. Compare
id. at 247-249 (seven-year delay did not render motion untimely
in "highly unusual circumstances" of case, including conflicting
decisions between United States Court of Appeals for First
Circuit and this court that would otherwise "lead to confusion
and administrative deadlock"), with Owens v. Mukendi, 448 Mass.
66, 76-77 (2006) (listing cases where delays of two or three
years rendered motion untimely).
Applying these principles, we find that the department's
motion to terminate the decree was timely. The governmental
interests are significant, as denial on the grounds of
untimeliness "would effectively 'bind all future [regulatory
officials]' . . . to the decree's proscriptions," solely because
their predecessors failed to bring the motion at the earliest
available opportunity. Doe v. Briley, 562 F.3d 777, 781 (6th
Cir. 2009), quoting Rufo, 502 U.S. at 392. Additionally, the
prejudice to the plaintiffs is comparatively limited. Indeed,
any delay inures to the advantage of JRC. As long as the decree
remains undisturbed, JRC continues to benefit from the decree's
limitation on the regulatory authority that the department may
exercise over the facility. Cf. Doe, supra (rejecting argument
that motion to terminate decades-old consent decree was untimely
where, inter alia, "the only apparent consequence of the delay,
28
so far as [the nonmovant was] concerned, [was] that the decree
remained in place for some [thirty] years longer than it
probably should have").
Further, while we recognize that some of the grounds for
relief raised in the motion date back to the 1990s, the
department's primary arguments -- the department's record of
good faith compliance and a new medical consensus -- concern
gradual developments. Moreover, given that the department
sought to argue that it had a long-standing record of acting in
good faith, any delay in raising the argument was a reasonable
response to the decree itself; the delay allowed the department
time to demonstrate that it had learned from its mistakes and
had made the necessary institutional reforms. Cf. Associated
Bldrs. & Contrs. v. Michigan Dep't of Labor & Economic Growth,
543 F.3d 275, 279 (6th Cir. 2008), cert. denied, 556 U.S. 1127(2009) ("An unduly strict reading of the reasonable-time
requirement, moreover, would tend to force premature [Fed. R.
Civ. P.] 60(b)(5) motions due to a State's fear of losing
forever the opportunity to correct an injunction or consent
decree"). Accordingly, we turn to the merits of the defendants'
motion.
4. Satisfaction of purpose underlying consent decree.
Changed circumstances exist to warrant termination of a consent
decree, as opposed to its mere modification, where the moving
29
party demonstrates that the purpose of the decree has been
achieved. See 12 Moore's Federal Practice § 60.47[2][c], at 60-
178 & n.22 (3d ed. 2023). Although we have not provided
specific guidance on how to determine whether the purpose of a
consent decree binding public officials has been satisfied,
Federal courts have looked to whether the State has demonstrated
that it is currently in "substantial, good-faith compliance"
with the fundamental purpose of the consent decree and "unlikely
. . . [to] return to its former ways." Peery v. Miami, 977 F.3d
1061, 1075 (11th Cir. 2020), quoting Board of Educ. of Okla.
City Pub. Sch. v. Dowell, 498 U.S. 237, 247 (1991). See Shakman
v. Pritzker, 43 F.4th 723, 728 (7th Cir. 2022) ("A party
claiming to have satisfied the terms of a consent decree must
show that it has achieved the objectives of that decree . . .
and implemented a durable remedy"). To assess whether
termination is warranted on that basis, we look first to the
underlying purpose of the decree.
a. Purpose of consent decree. When this case was last
before this court on appeal, we explained the context and over-
all function of the consent decree as follows:
"The action that resulted in the settlement agreement was
brought because the parents and guardians of JRC patients
alleged that OFC was denying individual patients their
constitutional rights to certain treatments and was not
regulating JRC in good faith. The settlement agreement
sought to remedy this situation while allowing the
30
department to continue to fulfil its statutory duties to
regulate mental health facilities."
JRC I, 424 Mass. at 450. In describing the decree, we did not
go so far as to state that its purpose was to guarantee the
right of access to aversives, as the plaintiffs' claims to that
effect were never actually adjudicated and determined by the
court. That being said, the terms of the consent decree, along
with the underlying proceedings, do reveal two main purposes.
First, the consent decree was intended to ensure that the
department's predecessor in interest, OFC (and later, the
department itself), would regulate JRC in good faith and avoid
engaging in unauthorized, "unilateral interference" with
individual treatment plans. Id. at 445-447. Second, the
consent decree was intended to permit JRC to continue using
aversives on individual patients, but only subject to judicial
supervision, by way of substituted judgment proceedings. See
id. at 444. The decree contemplated that the department would
be allowed to participate in these proceedings, and that JRC
would only receive authorization where the proposed treatment
was the least intrusive and most appropriate to the client's
needs. See id. at 444 n.15. The consent decree otherwise
preserved the department's regulatory authority.16 See id. at
16We recognize that the consent decree contained a
provision calling for a court monitor to evaluate JRC's
compliance with department regulations that did not concern
31
445 ("Indeed, there is no provision in the agreement that
provides the department gave up any regulatory authority").
Whether these purposes have been fulfilled remains hotly
disputed. We address each one in turn.17
b. Findings of bad faith regulation. Here, the judge
below found that the purpose of the decree had not been
fulfilled because the department engaged in bad faith regulation
level three aversives. We previously declined to address the
permissibility of this provision, stating:
"We do not consider whether the portion of the agreement
providing that it was the court monitor, not the
department, that was to oversee compliance with all other
applicable State regulations except those related to Level
III aversives and undertake general monitoring of JRC's
treatment and educational program constituted an
impermissible delegation of regulatory authority. The
findings of the judge with respect to this portion of the
settlement agreement are not necessary for our decision
here; we note, moreover, that neither side disputes that
JRC was required to be certified according to the
department's regulations, and it is that certification
process and its relationship to the settlement agreement
that is before us."
JRC I, 424 Mass. at 445 n.19. Regardless, the winding down and
eventual termination of the receivership resulted in these other
regulatory functions being returned to the department.
17 Because the second purpose -- concerning JRC's ability to
use aversives pursuant to court authorization -- implicates the
interplay between the consent decree and the department's
residual regulatory authority, we address it as part of our
discussion of the separation of powers argument raised by the
defendants.
32
in 2010.18 In support of this finding, the judge relied upon
three subsidiary findings: (1) the alterations made by McGuire
to the 2008 Hamad memo concerning the use of aversives; (2) the
alterations made by the department's commissioner and general
counsel to the 2010 certification report; and (3) the
department's decision to accept certain conditions proposed by
the 2010 certification team concerning the acceptable use of the
GED that the judge concluded were "impermissibl[e] . . .
treatment decisions."
On appeal, the department asserts that the Hamad memo did
not affect the department's regulation of JRC because the
department was not involved in the creation of the memo and did
not rely on it in any way. The department further argues that
the changes made to the 2010 certification report were largely
nonsubstantive, and that the alterations made were "reasonable
exercises of the [c]ommissioner's ultimate authority to approve,
approve with conditions, or disapprove a Level III program,"
citing 115 Code. Mass. Regs. § 5.14(4)(f)(7) (2011). Finally,
the department claims that the conditions in the 2010
certification report concerning the acceptable use of the GED
18We note that this bad faith finding is based on conduct
that occurred thirteen years ago and an evidentiary hearing that
concluded in 2016. We stress again that our analysis does not
foreclose the possibility that new developments have occurred
since the record closed here bearing on these factual issues.
33
were properly within the purview of the department's regulatory
authority. We conclude that the department's alterations to the
2010 certification report, particularly the removal of the
team's substantial compliance finding and the dramatic reduction
in certification length, support the judge's finding of bad
faith. This finding of bad faith is further supported by the
department's unilateral decision, without first assessing the
scientific evidence, to impose a regulatory change that would
prohibit JRC from using level three aversives on new patients.
"Bad faith is a 'general and somewhat indefinite term' that
goes beyond 'bad judgment' or 'negligence,' suggesting 'a
dishonest purpose or some moral obliquity,' a 'conscious doing
of wrong,' or a 'breach of a known duty through some motive of
interest or ill will'" (citation omitted). Buffalo-Water 1, LLC
v. Fidelity Real Estate Co., 481 Mass. 13, 25-26 (2018). See
JRC I, 424 Mass. at 454. In the context of State action, this
includes the use of an otherwise lawful power for an improper
purpose. See Pheasant Ridge Assocs. Ltd. Partnership v.
Burlington, 399 Mass. 771, 776 (1987). In effect, bad faith
requires an inquiry into the subjective intent behind a party's
actions, in addition to the actions themselves. See Bank of
Am., N.A. v. Prestige Imports, Inc., 75 Mass. App. Ct. 741, 754-
755 (2009), and cases cited (discussing "foundational
34
definition" of bad faith, which involves "subjective focus" on
"knowing and conscious wrongdoing").
i. Hamad memo. The judge below found that the Hamad memo,
in its final form, "was shaped significantly by [EOHHS]
Assistant Secretary McGuire herself and did not represent an
independent, objective review." The judge then cited the Hamad
memo in her discussion of bad faith, describing the document as
the primary source for a memorandum from McGuire that was
"intended to create a justification for [the department] to
pursue a path that would eventually end with the elimination of
contingent aversive treatment at JRC." Although we do not
discount the Hamad memo, we do not consider it as significant as
the judge for the reasons discussed infra. It does, however,
provide further, albeit limited, support for the more compelling
evidence of bad faith relating to the department's manipulation
of the 2010 certification report.
We recognize, as did the judge below, that McGuire made
numerous alterations in the Hamad memo. This included
downplaying one expert's opinion that "contingent electric shock
might conceivably be needed . . . for a very, very small number
of exceptional cases where the individual's behavior was so
extreme as to be life threatening" and adding a statement that
"neither the professional literature nor the practice arena
supports the use of aversive contingent interventions for
35
behavior management of people with intellectual or other
disabilities that may involve serious behavioral problems."
However, McGuire's revisions are largely in accord with the
thrust of Hamad's original draft. The original memo contained a
list of policy recommendations for consideration by EOHHS,
including a recommendation to file legislation banning
aversives, which the original memo described as "reflect[ing] a
consensus view reached after completion of various review
activities conducted under your direction over that [sic] last
[six] months." Moreover, both versions of the memo effectively
contain the same conclusion that "alternatives to contingent
aversive techniques are not only the preferred methods to treat
extreme behavior disorders but have clearly become the practice
standard in the field of developmental disabilities."
It is nonetheless apparent from the record that the Hamad
memo did not provide an independent, objective review of
aversives. Notably, Hamad did not seek to interview either of
the independent psychologists who evaluate and prepare reports
on the patients for whom JRC seeks use of the GED. Nor did
Hamad follow up on information he received about clinicians at
Johns Hopkins University and the University of Florida, as well
as psychologists in Boston, who supported considering aversives
where alternative treatments had failed. These shortcomings
support the judge's finding that the Hamad memo did not
36
constitute an independent, objective review of the standard of
care.
However, as the department emphasizes, the record does not
contain evidence to support the finding that the Hamad memo
played a role in the department's subsequent regulatory actions
toward JRC. Although the advisory group in which Hamad
participated included several department clinicians, it does not
appear that department officials were involved in the drafting
of the Hamad memo, let alone McGuire's subsequent revisions.
Nor was any evidence presented indicating that the department
was influenced by, or even aware of, the contents of the Hamad
memo at the time of the 2010 certification process. That said,
the memo's origin, revisions, and methodology suggest a result-
oriented approach that lends some contextual support for the
more significant basis for the judge's finding of bad faith:
the department's revisions to the 2010 certification team
report.
ii. Revisions to 2010 certification team report. Firmer
support for the judge's finding of bad faith can be found in the
revisions to the 2010 certification team report. The judge
found that "many parts of the final report . . . were entirely
rewritten" by the department's general counsel and the
commissioner, including "significant substantive changes" made
without the approval or knowledge of team members other than
37
Levendusky. The judge further concluded that even though
Levendusky approved the changes, he was not the "driving force"
behind them, and that the involvement and influence of the
commissioner was akin to the bad faith regulation of the 1980s
and 1990s.
Although we agree with the judge's over-all conclusion that
these changes support a finding of bad faith, we do not agree
that "many" parts of the report were "entirely rewritten."19 The
important substantive changes to the report, which totaled more
than thirty pages, consisted of (1) the deletion of the
"substantial compliance" language and the team's recommendation
for a one-year recertification; (2) the revised recommendation
to extend JRC's existing certification by only fourteen days;
and (3) the addition of burdensome documentation requirements,
with short turn-around times, contained within the summary of
conditions.20
It is readily apparent that these three changes were both
significant and improper. The impetus for removing the
19While language was removed from the "Safety Review of GED
and GED-4 Device" section, as well as the "Peer Review" section,
and small revisions were made to the "Level II Interventions in
Use" section, these edits appear to be more stylistic than
substantive.
20We also note the alteration of condition (2) (g) from
requiring JRC to engage a "multidisciplinary" team to instead
requiring an "external" one comprised of at least three
clinicians with ABA expertise.
38
"substantial compliance" language and the one-year certification
recommendation both originated from the commissioner and her
general counsel, not Levendusky. While Levendusky was the first
to suggest adding deadlines, he was not considering changing the
one-year certification recommendation at the time the report was
drafted, and he did, in fact, find JRC to be in substantial
compliance with prior certification conditions. Further, the
removal of the "substantial compliance" language was far from
mere semantics. The commissioner admitted at the hearing that
under the department's own policies, a finding of substantial
compliance would have resulted in a one-year certification
recommendation, and thus, removal of that language was necessary
to justify the department's decision to grant a shorter
certification length. Accordingly, the commissioner's decision
to extend JRC's existing certification by only fourteen days was
improper under the department's own policies, given the 2010
certification team's actual finding of substantial compliance.
And by limiting JRC's certification extension to only fourteen
days, the department put JRC under significant undue and
unjustified pressure, placing all of its patients' aversive
treatment plans in jeopardy. Further compounding this pressure
was the additional requirement that JRC provide substantial
documentation reflecting compliance within relatively tight
deadlines.
39
Considering these improper revisions within their
surrounding context, the judge's finding of bad faith in 2010
was not clearly erroneous. Prior to the events in question,
Bigby had sent a memorandum to the Governor indicating that the
certification team had "recently completed a monitoring review
and found JRC to be in substantial compliance with previously
imposed conditions," noting that "JRC staff [had] been very
cooperative and improvement in the program [was] evident" and
that "[b]y all accounts, the situation at JRC [was] as good as
it [had] ever been." Things appear to have changed when, four
months later, the Governor's chief legal counsel met with
disability advocates who recommended "mak[ing] every use of the
upcoming certification to assure that [the administration is]
tough on / responsive to those areas where [JRC] continues to be
non-compliant or has slipped." McGuire relayed this message to
the department's commissioner and general counsel, indicating
that the Governor's chief legal counsel would expect "an update
on this certification process, once the team's work is done but
before we issue the decision." McGuire would later remark in an
e-mail message that she also told the commissioner that McGuire
"did not think [the administration] would support another six
month certification." And when the department finally sent the
revised certification report to EOHHS, the department's general
counsel made a point of highlighting to McGuire that, with the
40
limited fourteen-day extension, JRC's certification "could be
pulled at day [fourteen] or day [forty-five] if [JRC's] response
isn't sufficient." The department's general counsel did so
despite acknowledging that, for some of the report's findings of
noncompliance, "these are really professional judgment issues."
On the whole, this evidence supports the judge's inference
that the removal of the substantial compliance language, the
dramatic reduction in certification length from one year to
fourteen days, and the imposition of burdensome and time-
sensitive follow-up requirements did not amount to a good faith
assessment of JRC's regulatory compliance, but an attempt to
appease advocates opposed to JRC and maximize the
administration's ability to justify a revocation of JRC's
certification. See Lynch v. Crawford, 483 Mass. 631, 644
(2019), quoting Commonwealth v. Casale, 381 Mass. 167, 173
(1980) ("intent is a matter of fact, which is often not
susceptible of proof by direct evidence, so resort is frequently
made to proof by inference from all the facts and circumstances
developed at the trial"). This improper motive supports a
finding of bad faith.21
21In light of our conclusion that the department's
revisions to the 2010 certification report supported the judge's
finding of bad faith, we need not address the third basis for
the judge's finding of bad faith -- namely, her determination
that "by accepting certain recommendations of the 2010 Level III
Certification Team, [the department] impermissibly made
41
c. Whether purpose of consent decree was satisfied given
passage of time. We next consider the judge's holding that this
bad faith conduct demonstrated that the purpose of the consent
decree had not been fulfilled as of 2018, and whether that
ruling was an abuse of discretion given the passage of time.
For the reasons discussed infra, we conclude that it was not.
In reaching this conclusion, we recognize that the basis for the
judge's finding of continued bad faith relies heavily on conduct
that occurred in 2010, eight years prior to the denial of the
motion in 2018. Further, it is apparent that after the parties
mediated their dispute concerning the 2010 recertification
process, the department went on to issue a new one-year
certification, with conditions, to JRC in 2013. As of the close
of evidence in this case, JRC's 2014 application for
recertification was still outstanding, but as far as we are
aware, there have been no additional allegations of bad faith by
the department in the course of performing its regulatory
oversight duties between 2010 and the commencement of the
hearing in the instant case. Moreover, it has now been over ten
years since the department's motion to terminate was filed.
treatment decisions for JRC clients." We further note that the
complex interplay between the consent decree and the
department's residual regulatory authority is an issue we
address separately in our discussion of the department's
separation of powers argument.
42
To be sure, the passage of time, combined with the turnover
of administrations and leadership in an agency, as well as the
cessation of bad faith regulatory misconduct, can provide
support for the eventual termination of a consent decree that
binds public officials. See Frew v. Hawkins, 540 U.S. 431, 441-
442 (2004); Inmates of Suffolk County Jail v. Rouse, 129 F.3d
649, 656-657 (1st Cir. 1997), cert. denied, 524 U.S. 951 (1998).
The Legislature delegates power to an executive agency to make
and enforce rules in accordance with that agency's expertise in
light of changing conditions. See Borden, Inc. v. Commissioner
of Pub. Health, 388 Mass. 707, 723-724, cert. denied sub nom.
Formaldehyde Inst., Inc. v. Frechette, 464 U.S. 936 (1983);
Mostyn v. Department of Envtl. Protection, 83 Mass. App. Ct.
788, 797 (2013). Consent decrees enmesh the judiciary in
ongoing oversight of such policy-making decisions, and may serve
to "improperly deprive future officials of their designated
legislative and executive powers." Frew, supra at 441. These
risks are compounded for decrees that last decades, requiring
ongoing judicial supervision over subsequent actors who are far
removed from the original actors' bad faith misconduct. See
Rufo, 502 U.S. at 392 ("To refuse modification of a decree is to
bind all future officers of the State, regardless of their view
of the necessity of relief from one or more provisions of a
decree that might not have been entered had the matter been
43
litigated to its conclusion"). Thus, to the extent that a
consent decree is based on agency misconduct, evidence
establishing that the improper conduct of the past has been
abandoned, and that the agency has been acting in good faith,
would support termination of the consent decree. See Peery, 977
F.3d at 1075. Contrast MacDonald, 467 Mass. at 388-389 (where
court order at issue binds private parties, neither passage of
time nor movant's ongoing compliance are normally sufficient,
without more, to justify termination).
Here, however, the issue of bad faith regulation as of the
judge's ruling in 2018 arises not only from the manipulation of
documents in 2010 or expert opinion in 2008, but also from the
department's continued insistence on using the regulatory
process to achieve a predetermined outcome regarding level three
aversives -- namely, to eliminate a treatment protocol that the
Legislature has repeatedly declined to ban,22 that judges in the
Probate Court have regularly authorized through substituted
22Although there has been no shortage of legislative
proposals to ban aversive treatments, none has passed. See,
e.g., 2023 House Doc. No. 180; 2021 House Doc. No. 225; 2019
House Doc. No. 123; 2017 House Doc. No. 93; 2015 House Doc.
No. 89; 2015 Senate Doc. No. 80; 2013 House Doc. No. 106; 2013
Senate Doc. No. 30; 2011 Senate Doc. No. 51; 2011 House Doc.
No. 77; 2009 House Doc. No. 154. Other proposals to restrict or
study aversive treatments have similarly failed. See 2023 House
Doc. No. 170; 2022 House Doc. No. 4956; 2015 Senate Doc. No. 79;
2013 Senate Doc. No. 28; 2011 Senate Doc. No. 49; 2009 House
Doc. No. 183; 2009 Senate Doc. No. 45.
44
judgment, and that the department itself had agreed to permit
when it chose to bind itself to the consent decree -- without an
objective consideration of the evidence concerning the use of
the aversives, and without adhering to the legal requirements
imposed upon the department by the courts. In the instant case,
we conclude that the judge could reasonably find that the
consent decree remained necessary in 2018 to prevent bad faith
regulation because the regulations promulgated by the department
in 2011 again demonstrated its intention to reach this
predetermined outcome without first objectively evaluating the
medical evidence or moving to terminate the consent decree.
The record indicates that, in 2010, after recent
legislative efforts to ban electric skin shock had failed, Bigby
sent a memorandum to the Governor with other policy options to
restrict or eliminate electric skin shock. At that time, she
cautioned that a regulatory ban could be construed as bad faith
regulation, and recommended tabling any policy proposals until
the Attorney General completed a criminal investigation into the
August 2007 incident. After the completion of that
investigation, Bigby authored a memorandum in April 2011 with
EOHHS's "recommendations for next steps in our regulatory
relationship with JRC." The first recommendation was to move
for termination of the consent decree. The second
recommendation, made "alternatively, or concurrently" to the
45
first, was for the department to promulgate regulations to
prospectively ban level three aversives.
Two months later, the department proposed the 2011
regulations. These regulations were proposed only a year after
the 2010 certification report, and while the dispute about JRC's
compliance with the conditions contained in that report remained
ongoing. From the record, it also appears that there was no
effort by the department to undertake an independent objective
review of level three aversives prior to the passage of these
regulations. The department apparently did not convene experts
who considered the issue until after the regulations had already
gone into effect.
Most importantly, by choosing to pass the 2011 regulations
before moving to terminate the consent decree -- which, as
explained infra, the department was required to do -- the
department effectively sought to use its regulatory power as an
"end run" around the consent decree. In so doing, the
department again demonstrated that it was determined to alter
its policy toward aversives, regardless of the existence of the
consent decree and the legal constraints contained therein. It
was only later, nearly one and one-half years after those
regulations were promulgated, that the department chose to come
before the Probate Court to seek termination of the consent
decree. All of this supports the judge's conclusion that the
46
consent decree remained necessary in 2018, despite the passage
of time, to preclude bad faith regulation by the department. We
therefore turn to the issue of changed circumstances of fact and
the judge's finding that no such change had occurred to warrant
termination of the decree.
5. Existence of changed circumstances of fact. In
entering the consent decree in 1987, the Probate Court found
that JRC's use of physical aversives was safe, effective, and
professionally acceptable. At that time, the Probate Court also
referenced earlier findings in which the Probate Court had
determined that JRC's use of physical aversives was "consistent
with professional practice" and was employed "in lieu of
antipsychotic medication and other more restrictive procedures,
such as seclusion and painful electric-shock." The department
contends that this is no longer the case, both because JRC now
employs electric skin shock and because the use of electric skin
shock is not within the professional standard of care. The
department also asserts that, regardless of whether electric
skin shock falls within the general standard of care, its
practical implementation at JRC does not. We address each
contention in turn.
a. Invention of GED. Although the judge did not
explicitly address whether the invention of the GED constituted
a change in circumstances, her failure to do so was not an abuse
47
of discretion. While the consent decree predates the use of
electric skin shock treatment at JRC, the decree concerns the
use of "all aversive procedures which are presently used or
which may be proposed for use at [JRC]," apart from exceptions
not relevant here. The consent decree also explicitly states
that "[n]othing in this agreement shall preclude [JRC] from
developing new . . . aversive procedures." Given that the
consent decree patently contemplated the development of new
aversives, the fact that the GED was not in use at that time is
clearly insufficient, without more, to warrant termination of
the decree. See Rufo, 502 U.S. at 385 ("modification should not
be granted where a party relies upon events that actually were
anticipated at the time it entered into a decree").
In reaching this conclusion, we recognize that the findings
of fact in support of the consent decree referenced earlier
findings in which the Probate Court had determined that JRC's
aversive techniques were less restrictive than "painful
electric-shock." That finding was derived from uncontroverted
testimony offered at the preliminary injunction hearing in 1986,
wherein one of JRC's expert witnesses testified about
"contingent electroshock." Despite JRC's assertion to the
contrary, this does appear to be a reference to electric skin
shock akin to the GED. At the 1986 hearing, the expert
described "electroshock" as consisting of shocks that "would be
48
administered for a very, very brief period[,] sometimes, merely
seconds," and explicitly distinguished it from electroconvulsive
therapy.
Nonetheless, this does not alter our analysis. The same
expert -- whose testimony was credited by the Probate Court in
1986 -- stated that contingent electric shock remained "less
aversive than . . . large dosages of drugs, [or] . . .
electroconvulsive shock therapy." The expert further offered
that he would consider using contingent electroshock if a
patient was "likely going to kill [him- or herself]" and nothing
else had "proved to be effective." Another expert, quoting from
professional literature, offered testimony at one of the six-
month review hearings in 1987 that "very intense punishment such
as shock . . . should be considered for immediate inclusion in
treatment" where there is "imminent and extreme physical danger
or when the self-injurious behavior is so intrusive as to
prevent participation in habilitative and humanizing
activities," or when other interventions have not reduced the
self-injurious behavior. Accordingly, the invention of an
electric skin shock device by JRC does not constitute an
unforeseen change in circumstances that would warrant
termination of the consent decree.
This is not to say that JRC's turn toward electric skin
shock as a physical aversive does not require specific
49
consideration. As stated, in entering the consent decree, the
Probate Court found that, as of 1987, JRC's use of physical
aversives was safe, effective, and professionally acceptable. A
change in the safety, efficacy, or professional acceptability of
the physical aversives used by JRC would constitute a
significant and unforeseen change in circumstances. Thus,
although the mere invention of the GED, and its use by JRC, is
not a change in circumstances, a finding that its usage is not
safe or professionally acceptable would be. With these
principles in mind, we turn to the judge's findings as to the
standard of care and assess whether those findings were clearly
erroneous based on the evidentiary record before the Probate
Court in 2016.
b. Electric shock and standard of care. In denying the
defendants' motion, the judge below found that, as of the close
of evidence in 2016, there was still no professional consensus
that the use of level three aversives fell outside the standard
of care to treat severely self-injurious and violent behavior.
The department argues that the judge improperly conflated
evidence as to the acceptability of aversive treatments in
general with evidence as to the acceptability of electric skin
shock in particular. On the latter subject, the department
asserts that the evidence is clear: there is "no serious
dispute" as to the professional consensus that electric skin
50
shock is outside the standard of care for individuals with
developmental disabilities.
We recognize, of course, that a professional consensus does
not require unanimity. In any profession, on the most difficult
issues, unanimity of opinion is often nearly impossible to
achieve. See Planned Parenthood Fed'n of Am., Inc. v. Gonzales,
435 F.3d 1163, 1172 (9th Cir. 2006), rev'd sub nom. Gonzales v.
Carhart, 550 U.S. 124 (2007) ("By medical consensus, we do not
mean unanimity or that no single doctor disagrees, but rather
that there is no significant disagreement within the medical
community"). That said, our inquiry is limited to whether,
based on the evidence before the Probate Court in 2016, the
judge's finding that no professional consensus existed at that
time as to JRC's use of physical aversives was clearly
erroneous.
Our review of the record indicates that there was support
for the judge's finding as of the close of evidence in 2016. In
fact, it appears that when the department filed its motion to
terminate the decree in early 2013, now a decade ago, there was
an ongoing debate about the potential necessity of level three
aversives among the very experts that the department elected to
consult in formulating practitioner guidelines. Separate and
apart from any clinicians tasked with reviewing JRC's regulatory
51
compliance or treatment plans,23 experts that the department
selected to serve on its PBS advisory subcommittee expressed
ambivalence in 2012 and 2013 about whether electric skin shock
was outside the acceptable standard of care. Indeed, the
subcommittee was nearly unanimous24 in its rejection of draft PBS
guidelines on the use of procedures to "decelerate challenging
behavior," which included language prohibiting electric skin
shock and other level two and three aversives, because members
were "uncomfortable with banning specific procedures." The co-
chair of the subcommittee, Dr. Christopher Fox, suggested an
alternative set of guidelines that would call for
individualized, evidence-based treatments, with rigorous
training and monitoring requirements.25 Another member of the
23There was also testimony, which the judge below
referenced in her findings, to indicate that the independent
clinicians who monitor JRC's regulatory compliance and treatment
plans believed that the GED remained within the professional
standard of care.
24Although the subcommittee co-chair described the
subcommittee's opinion as "unanimous" on this issue, he also
noted that three members were absent from the portion of the
meeting in which the issue was discussed.
25In a later e-mail message, Fox went on to acknowledge
that the 2011 regulations, which predated the formation of the
subcommittee, had already served to limit the use of electric
shock to those patients with existing GED treatment plans; he
nonetheless opined that, "[i]n an ideal world I would like all
interventions to be available," even though "in the world as it
exists currently that is not the case."
52
subcommittee, Dr. Steve Woolf, expressed a similar sentiment,
writing:
"[Level three interventions] should be implemented based on
three ethical considerations: 1) client's right to safe
and humane treatment, 2) the behavior analyst's
responsibility to use the least restrictive procedure, and
3) the client's right to effective treatment. In my
experiences, [there] is a very small minority of clients
that may require . . . a level three intervention. Banning
these evidenced-based [sic] positive punishment treatments
raises very important ethical concerns when serving clients
with chronic life-threatening problem behaviors. Failing
to use these procedures that research has shown to be
effective in suppressing self-destructive behavior that
have [sic] not responded to positive reinforcement,
extinction, or less intrusive intervention is unethical
because doing so withholds potentially effective treatment
and risks maintaining a dangerous state. . . .
"I would agree to stronger regulation, oversight, and
quality assurance monitoring of these punishment based
procedures. However, the outright prohibition of level
three [interventions] requires more time to study."26
Other members of the subcommittee similarly expressed
concerns that more work was necessary on this issue, with one
member stating that "practices regarding the most severely
behaviorally challenged individuals requires a much greater
degree of collaboration, specification, research and consensus
than has been achieved thus far."
26 The department points out that this e-mail message was
subject to an evidentiary objection, and the judge admitted it
for a limited purpose. However, the judge later admitted the
same e-mail message as a separate exhibit, without limitation,
and the department did not object.
53
The department seeks to downplay these discussions by
highlighting the fact that the experts did not explicitly
identify electric skin shock in their comments, and argues that
they were instead referencing other level three aversives.
However, the theme that emerges from all of these communications
is a discomfort with banning any specific procedures in that
category, which would include electric skin shock, without
additional evidence and research. And importantly, when the
concerns of these experts were relayed to the department, the
department responded by silencing any further debate among the
subcommittee as to level three aversives. Indeed, from the
outset of the subcommittee's consideration of this topic, the
department bluntly informed the co-chair that "it [wouldn't]
matter" if the ABA literature supported the efficacy and
professional acceptability of specific decelerative procedures
when it came to procedures that the commissioner "[did] not
like."
There was also evidence that this debate was not isolated
to experts consulted by the department. The 2016 edition of the
ABA textbook "Contemporary Behavior Therapy (Sixth Edition),"
excerpts of which were admitted at trial, states that "mild
electric shock often is an effective and efficient means of
significantly reducing self-injurious behaviors." Additionally,
Dr. Richard Foxx, a national expert in this area, believed that
54
the use of electric skin shock may be necessary to treat a
"very, very small number of exceptional cases where the
individual's behavior was so extreme as to be life
threatening."27
Testimony provided by the plaintiffs about the efficacy of
JRC's treatment methods formed another source of evidence that
the judge could reasonably consider in assessing this issue.
Although the department dismisses this evidence as "anecdotal,"
the testimony credited by the judge reflects that, for many
families with children at JRC, its treatment methods were not
only effective, but also considered more humane than the course
of restraint and pharmacological sedation to which their
children had previously been subjected. One mother testified
that, prior to JRC, her daughter had a long history of school
expulsions and hospitalizations due to her severe aggressive
behaviors. The daughter had previously been prescribed Abilify
27While not necessary to our analysis, we also note that
two separate Federal court cases involving JRC from 2010 and
2012 reference the existence of such a debate within the context
of addressing claims brought under the Individuals with
Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. See
Bryant v. New York State Educ. Dep't, 692 F.3d 202, 215 (2d Cir.
2012), cert. denied, 569 U.S. 958 (2013) (referencing "ongoing
debate among the experts regarding the advantages and
disadvantages of aversive interventions and positive-only
methods of behavioral modification"); Alleyne v. New York State
Educ. Dep't, 691 F. Supp. 2d 322, 332 (N.D.N.Y. 2010) ("It is
readily apparent that the use and benefits of aversives in an
educational setting is a divisive issue among educational
professionals").
55
and Risperdal, among upwards of twenty other medications, and
had been subject to long periods of seclusion and restraint at
prior placements. All were unsuccessful in treating her violent
behaviors. By the time she enrolled at JRC, it was the only
facility in the Commonwealth that was willing to take her. And
in contrast to the prior treatment inventions she had received,
JRC's treatment protocol was effective in minimizing her
behavioral problems, allowing her to go on field trips and other
outings. As her mother testified, "[My daughter] says her whole
world opened up. . . . She has gone from a person that is
isolated and medicated and injured and unhappy to a young person
that is happy and able to live in a world and experience what
other people experience." A father testified that his son came
to JRC with incredibly harmful behavioral issues, including
rectum and throat gouging, eye picking, and self-induced
vomiting. After being placed at JRC and treated with the GED,
and in contrast to prior pharmacological treatments, the
dangerous behaviors substantially decreased. The father
testified that his son is "happier now than he's ever been" and
engages in hobbies and field trips.
A former JRC patient who testified at trial described
experiencing a similar journey. Prior to JRC, she had
repeatedly been expelled from residential placements, and had
been rejected from as many as thirty-seven programs, due to
56
extremely violent behaviors that she exhibited toward herself
and others. During this time, she was treated with numerous
medications, which she testified had the effect of making her
feel like a "zombie," and was repeatedly placed in physical
restraints, including straightjackets. When she finally came to
JRC and began treatment with the GED, her self-injurious
behaviors drastically decreased, until they went away
completely. She eventually went on to receive her high school
diploma, obtained gainful employment, and now has children of
her own. These testimonials are also echoed in a description
offered by one of the independent clinicians tasked with
evaluating JRC treatment plans, in an e-mail message sent to the
department's general counsel:
"Having visited institutions and programs all over the
country, and in some foreign countries, I have rarely, if
ever, seen clients with the degree of disability seen at
JRC dressed in shirts and ties, living in community housing
and earning weekends at community recreation, shopping, and
dining activities."
To be sure, despite these examples, and as the judge below
appropriately recognized, the use of level three aversives
remains bitterly contested and controversial, even when it is
limited to a class of patients for whom other treatment
protocols have failed, and authorized only through substituted
judgment proceedings. As the judge acknowledged, JRC stands
alone in using electric skin shock to treat such patients, when
57
other facilities would decline to do so. And as the department
highlights, the National Association of State Directors of
Developmental Disabilities Services has rejected the use of
electric skin shock, many clinicians regard electric skin shock
as a treatment that does not fall within the standard of care,
and as the judge found, approximately one-half of States have
banned its use on the developmentally disabled. Nonetheless, we
cannot conclude that the judge's finding regarding the use of
aversives was clearly erroneous based on the evidentiary record
before the Probate Court in 2016. See Demoulas, 424 Mass. at
510 ("Where there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly erroneous"
[citation omitted]).
In reaching this conclusion, however, we remain troubled
that we do so based on a record that is nearly a decade old.
The correspondence between members of the PBS subcommittee in
2012 and 2013 reflects a concern that additional evidence,
research, and dialogue would be necessary to achieve a
consensus. Yet, in response to those concerns, the department
decided that "it was not appropriate" for the subcommittee to
consider the issue further. We also do not know whether these
experts later changed their mind based on additional
information, or whether other significant research and treatment
developments have taken place since the close of evidence in
58
2016. And when asked at oral argument whether this case should
be remanded for further findings in this regard, the department
was adamant that it not be. Thus, we do not reach the propriety
of electric skin shock treatment in 2023, as we do not have the
record to do so, and we therefore do not foreclose the
possibility that new scientific developments or a more recent
evidentiary record would suffice to demonstrate a change in the
standard of care. See MacDonald, 467 Mass. at 394 ("Although we
conclude that the judge here, on this record, did not abuse her
discretion in denying the defendant's motion to terminate the
abuse prevention order, we leave open the possibility that the
defendant might be able to meet his burden if he were to renew
his motion with a stronger evidentiary foundation").
c. JRC's implementation of GED. The department contends
that, regardless of whether the use of electric skin shock is
acceptable as a general matter, its use at JRC is improper
because it is not employed solely as the least restrictive
method of treatment. The department points to expert testimony
and video footage admitted at trial, which shows eleven specific
instances in which the GED was applied to seemingly minor
behaviors, as proof that "JRC regularly misuses GED."
Importantly, the department does not appear to be arguing
that JRC is violating or subverting the authorization provided
by its court-approved treatment plans. Rather, the department
59
principally takes issue with some of the behaviors for which JRC
has been granted court approval to use the GED. Yet the
department retains the authority to participate in the annual
substituted judgment proceedings in which those individual
treatment plans are approved. And as we have previously stated,
if the department's monitoring of JRC "reveals any problems [in
an individual treatment plan], that information should be
brought to the judge who has authorized the use of aversive
treatments." JRC I, 424 Mass. at 447 n.20. However, as the
judge below found, the department regularly declines to do so,
despite being given the opportunity to weigh in on a yearly
basis, and despite having access to the materials that JRC uses
in support of its substituted judgment petitions. See 115 Code
Mass. Regs. § 5.14(4)(d)(6) (2011). Given the department's
failure to utilize these existing means of preventing any
unjustified application of the GED in particular circumstances,
we cannot discern why those existing corrective measures are
inadequate and why elimination of the consent decree in total is
an appropriate remedy. The department can and should raise
these specific concerns in the yearly substituted judgment
proceedings before the Probate Court.
6. Whether continued enforcement of consent decree
violates separation of powers. The department further argues
that the decree interferes with the department's regulatory
60
authority, in violation of the separation of powers expressed in
art. 30 of the Massachusetts Declaration of Rights. We
disagree.
This is not the first time that we have considered the
relationship between the consent decree and the department's
constitutional regulatory authority. In response to a similar
argument raised by the department in JRC I, 424 Mass. at 445, we
indicated that "to read the [consent decree] as a delegation of
all regulatory authority" would raise constitutional concerns.
However, the consent decree contained no such provision to this
effect, and we concluded that it was reconcilable with art. 30.
See id. In so doing, we distinguished those regulatory powers
that the department retains from those actions that must give
way to the consent decree and judicial enforcement. In
explaining that distinction, we stated that the department
retained "authority regarding certification requirements [and]
compliance with applicable regulations," but that the consent
decree reserved "the ultimate decision on an individual's
treatment" to the judiciary, via substituted judgment. See id.
at 445-446. We also explained more specifically that the
department was precluded from using "bad faith regulatory
practices . . . [to] ensure that no individual . . . receive[s]
aversive therapies at JRC." Id. at 449.
61
We address this "bad faith" regulatory constraint first,
and its relevance to the evidentiary record before the court as
of 2016.28 Given the department's history of using its
regulatory power in bad faith to halt the use of physical
aversives and interfere with JRC operations, it was
constitutionally permissible to impose certain restrictions on
regulatory changes by the department that would limit the use of
level three aversives. This is not a separation of powers
problem. Rather, the department's own bad faith regulatory
practices (and those of its predecessor) justified imposing
limitations on its regulatory authority, by way of a consent
decree, as a form of remedial action. See JRC I, 424 Mass. at
461; Matter of McKnight, 406 Mass. 787, 807 (1990) (Liacos,
C.J., dissenting) (general practice of judicial deference to
agency expertise "is not absolute; it gives way in the face of
agency misbehavior"). By agreeing to be bound by the decree,
the department agreed to additional restrictions on its own
ability to regulate level three aversives in any manner that
would exceed the constraints imposed by the consent decree. The
department also bound itself to the requirement of demonstrating
28In so doing, we note that we have not been presented with
any allegations or evidence of bad faith since that date and do
not purport to address whether any bad faith conduct has
occurred in the seven years that have elapsed since the close of
evidence.
62
a change in circumstances before it could escape the constraints
contained within the decree.
These constitutionally permissible constraints precluded
the regulatory change proposed by the department in the 2011
regulations. The use of level three aversives was authorized by
the Probate Court, pursuant to the substituted judgment process,
when it was found to be the least intrusive and most appropriate
means of preventing significant harm for an individual patient.
The 2011 regulations took that power away from the Probate
Court, and thus constituted an impermissible end run around
substituted judgment proceedings. Further, the department was
well aware of the existing consent decree at the time it chose
to promulgate the 2011 regulations, and yet made no attempt to
terminate the decree prior to doing so. It is not a separation
of powers problem to enforce the consent decree and its
constraints in this context or to consider the 2011 regulations
as another example of bad faith regulatory misconduct.
Nor do we find persuasive the department's contention that
a prospective regulatory ban on level three aversives is
permissible because it does not interfere with any existing
patient's treatment plan or the substituted judgment process
overseen by the judiciary. This is far too narrow a reading of
our prior decision in JRC I. The consent decree's limitation on
the regulatory powers of the department, which came about as a
63
result of the bad faith conduct of the department's predecessor,
was not limited to existing JRC patients but extended to the
department's supervision over JRC's operations more generally.
Nor were these constraints limited to interference with the
substituted judgment process in an individual patient's
treatment plan. See JRC I, 424 Mass. at 449 ("it would be
absurd to conclude that, although the agreement was intended to
settle claims that the department's predecessor was improperly
denying the patients needed aversive therapy, the department
could, through bad faith regulatory practices, ensure that no
individual could receive aversive therapies at JRC").
Thus, the department may not prospectively ban the use of
level three aversives for all new patients, in the absence of
changed circumstances, without running afoul of the consent
decree. The existence of such a change in circumstances
requires a judicial determination to that effect, not a
unilateral decision by the department. If the department could
simply pass a new regulation at any point to prospectively ban
the use of level three aversives, the consent decree would be a
pointless paper tiger, ignoring the department's past misconduct
and the resulting consequences.
This does not mean that the department is powerless to
prevent the improper use of the GED. The judge below found that
"physical aversive treatment has not been effective for all JRC
64
students and may not be the least restrictive procedure
available to treat every student receiving physical aversive
treatment." To the extent that the department agrees that this
is the case for any particular patient, it can and should
register those objections with the Probate Court. We believe
this division of authority is in keeping with JRC I and
separation of powers principles.
Finally, we address the department's argument that failing
to terminate the consent decree violates the department's
statutory mandate. The department is charged with "mak[ing]
regulations for the operation" of providers of residential
services like JRC, see G. L. c. 19B, § 15 (a), as well as
"adopt[ing] regulations . . . which establish procedures and the
highest practicable professional standards for the reception,
examination, treatment, restraint, transfer and discharge of
persons with an intellectual disability in departmental
facilities," see G. L. c. 123B, § 2. The statutory scheme
requires that this latter type of regulation "be adaptable to
changing conditions and to advances in methods of care and
treatment and in programs and services for persons with an
intellectual disability." Id.
Such a mandate must certainly be respected. Further, we
note that the department's ability to pass regulations unrelated
to level three aversives is totally unaffected by the consent
65
decree. The only issue is whether the department can change
regulations related to level three aversives. In this regard,
evidence of changing conditions and advances in methods of care
and treatment are critical considerations in assessing whether
changed circumstances justify termination of the consent decree
and its limitation on the department's regulatory authority.
The judge's fact findings, however, reject the conclusion that
advances in methods of care and treatment as of the close of
evidence in 2016 supported the elimination of level three
aversives for these deeply troubled patients. Rather, the
expert testimony from 2015 and 2016, or at least the judge's
fact finding regarding that testimony, supported preservation of
level three aversives as an option of last resort for this
particular group at that time. We express no opinion whether
further medical advances since the hearing, or a better
evidentiary record regarding such advances, would justify
lifting the consent decree now or in the future.
7. Existence of changed circumstances of law. Finally, we
address the department's remaining arguments as to changes of
law that would warrant termination of the consent decree. For
the reasons discussed infra, the judge did not abuse her
discretion in declining to grant relief on this basis.
a. Change in Federal reimbursement policy for JRC
services. The department highlights that the Centers for
66
Medicare & Medicaid Services, a division of the Department of
Health and Human Services that oversees the Federal
administration of Medicaid and Medicare, indicated in 2012 that
it would no longer deem JRC's services eligible for
reimbursement from its Home and Community-Based Services waiver
program.29 As a result, the Commonwealth has expended additional
funds to make up for the shortfall in Federal reimbursement.
From 2012 to 2015, this amounted to $7.7 million.
Although the judge did not address this change in Federal
policy, her failure to do so was not an abuse of discretion.
Even though financial constraints "are a legitimate concern of
government defendants," they are normally assessed within the
context of "tailoring a consent decree modification," rather
than its wholesale termination. Rufo, 502 U.S. at 392-393.
This is not to say that financial constraints could not warrant
termination, but only that the department has not sought to
explain the impact of this funding burden or what strain it has
placed on State resources. Without any such information, we are
29The Home and Community-Based Services (HCBS) waiver is a
program that enables States to receive Federal funding for
community-based services provided to individuals who would
otherwise be institutionalized.
67
unable to conclude that this is evidence per se to warrant
termination of the decree.30
b. 2011 regulations. The 2011 regulations, through which
the department prospectively sought to ban the use of level
three aversives on new patients, do not constitute a change in
circumstances either. These regulations were promulgated by the
department, a party bound by the decree, and cannot form the
basis for permitting the department to escape, extrajudicially,
the obligations it voluntarily agreed to assume, for the reasons
discussed supra. That much should have been clear from our
prior opinion. See JRC I, 424 Mass. at 449 (observing that it
would be "absurd" to conclude that department could sidestep
obligations under consent decree by resorting to "bad faith
regulatory practices" for purpose of "do[ing] indirectly what
[the] order makes clear [it] cannot do directly"). See also
Delaware Valley Citizens' Council for Clean Air v. Pennsylvania,
533 F. Supp. 869, 876 (E.D. Pa.), aff'd, 678 F.2d 470 (3d Cir.
1982) ("A party should not be permitted, however, to obtain a
30As the department appears to acknowledge in its reply
brief, the decision by the Centers for Medicare & Medicaid
Services (CMS) to stop reimbursements for JRC services was not
competent evidence of a change in the professional standard of
care, as the department presented evidence of CMS's decision
only for the limited purpose of showing that Federal funding for
HCBS waiver participants at JRC had been revoked.
68
modification of a consent decree because of changed
circumstances of its own creation").
By contrast, a legislative ban on the use of electric skin
shock would constitute a change in circumstances.31 See Rufo,
502 U.S. at 388. And indeed, it is apparent that, during the
relevant period at issue in this case, EOHHS's preferred
strategy for changing the Commonwealth's policy toward electric
skin shock was a legislative ban. It was only in 2010, after no
legislative solution materialized, that Bigby provided the
Governor with other policy options to restrict or eliminate
31The department and the amici also make reference to a
rule promulgated by the Food and Drug Administration (FDA) in
2020 that banned the use of electric shock devices for treatment
of severe self-injurious or aggressive behavior. See 85 Fed.
Reg. 13,312 (2020). This rule -- which was promulgated after
the judge issued her decision below -- was later vacated by the
United States Court of Appeals for the District of Columbia
Circuit as exceeding the FDA's authority. See Judge Rotenberg
Educ. Ctr., Inc. v. United States Food & Drug Admin., 3 F.4th
390, 393 (D.C. Cir. 2021). We note, however, that in December
2022, Congress amended the statutory language that formed the
basis for the District of Columbia Circuit's decision to vacate
the rule. See Pub. L. No. 117-328, § 3306, 136 Stat. 4459, 5834
(2022). In a letter filed pursuant to Mass. R. A. P. 16 (l), as
appearing in 481 Mass. 1628 (2019), the department indicates
that the FDA has recently announced its intent to issue a
proposed rule that would again ban the use of devices like the
GED. If the FDA does, in fact, promulgate the same rule again,
that may well warrant termination of the decree. See
Atlanticare Med. Ctr. v. Division of Med. Assistance, 485 Mass.
233, 247 (2020). See also Rufo v. Inmates of Suffolk County
Jail, 502 U.S. 367, 388 (1992) ("A consent decree must of course
be modified if, as it later turns out, one or more of the
obligations placed upon the parties has become impermissible
under federal law").
69
aversives. However, Bigby's first instinct was correct -- any
change in circumstances cannot be manufactured by way of
regulatory changes promulgated by the very agency bound by the
decree.
If the department seeks to get out from under the decree,
it must either wait for a legislative solution, provide more
robust evidence that electric skin shock is outside the standard
of care than the record it relied upon in 2016, or establish an
ongoing record of good faith regulatory conduct toward JRC. In
the interim, of course, the department is always free to
intervene in any individual substituted judgment proceeding
where it objects to the use of the GED for a particular patient.
Indeed, in the one recent case where the department chose to do
so, it prevailed. The wisdom of the department's decision not
to avail itself of this option for any other patient is not
before us.
Judgment affirmed.