-: SJC-13298.
The Judge Rottenberg Educational Center, Inc.
and others, v
Commissioners of the Department of Developmental Services
and another.
-: Okay, attorney Casey.
-: Good morning your Honors, and may I please the court,
Tim Casey, Assistant Attorney General
on behalf of the appellants.
Your Honor's, Massachusetts is
usually at the forefront of our nation
in terms of recognizing individual rights,
honoring the inherent dignity of every person
and protecting the most vulnerable among us.
This court is often central to that important role
for our state,
but this case is about one way in which Massachusetts
is an outlier in the wrong direction.
We are the only state in the Union
where painful electric shock
is used on our most vulnerable and powerless citizens.
Those with intellectual or developmental disability,
or IDD.
-: Attorney Casey,
we have to decide whether not
the purpose of the settlement agreement
has been fulfilled under the Rufo standard.
Could you tell me in one sentence or two sentences what,
as you see it as the purpose of the settlement agreement?
-: The purpose of the settlement agreement, your Honor,
is to restore JRCs license,
to allow it to resume intaking patients
and to ensure that DDS and state regulators
give equal consideration to JRC
along with other providers
for the placement of individuals who need care.
-: The lawsuit was brought in part
to vindicate the civil rights
of the patients to treatment.
Right? Is that part of the purpose?
-: It was brought based on a claim
that DDS's predecessors had
unlawfully attempted to cease treatment at JRC.
-: Right, is this, is that part
of the settlement agreement as well?
-: It is insofar as the primary purposes stated
in the preamble of the decree is to
resolve the discreet litigation between the parties.
And I would note in terms of fulfillment of that purpose,
your Honor,
that DDS and its predecessors have
continuously licensed JRC.
It has remained open since the consent decree.
It, DDS has doubled its funding to JRC since 2005.
From 2005 to 2015.
It went from 5 million to 10 million.
The number of patients who are DDS funded has increased
during that same time.
So, and JRC has remained open
throughout that time.
It's remained licensed.
So DDS has emphatically fulfilled the purpose of the decree.
Thank you.
-: So what are you looking for us to do?
-: We are looking for the court.
We are asking the court to reverse the decision below
and to entirely vacate the consent decree.
-: And our review is for abusive of discretion.
-: Correct.
-: Okay. And so how,
given all the facts that you've just articulated
and all the facts that I'm sure you
marshaled before the probate court,
how is this an abusive discretion?
-: It is an abusive discretion, your Honor,
for a number of reasons.
First of all, an error of law, of course,
is an abusive discretion.
And there are a number of errors
in the probate court's decision
that we identify in our briefs
and we'll talk about today
that warrant reversal of the probate court's order.
There is also the case law about consent decrees and
modification of them from cases like Rufo
and a Horn against Flores.
Talk about how when a court,
a trial court is presented with
significant change circumstances,
it is an abuse of discretion for the court
not to modify or vacate the consent decree.
And here our position is that we've presented,
we did present the probate court with really overwhelming
evidence of change circumstances both of fact and of law.
-: Before you finish, after you finish on your error of law,
can you tell me whether you are
challenging any of her findings,
which findings you're challenging.
-: Your Honor-
-: But you can finish which errors of law you have.
-: Sure.
So we challenge a number of the findings,
but I would say first of all, there were,
and more centrally there were
legal errors in the court's decision.
There were structural errors,
particularly with regard to change circumstances
in how the probate court assessed the standard of care
and changed circumstances that led to reversible
legal error in its conclusions
regarding the standard of care.
And also a number of the findings are based particularly
with respect to bad faith,
are based on documentary evidence
which this court can review De novo itself,
even though the ultimate standard is
for abuse of discretion,
this court is in as good a position.
-: All right so now you've set forth
the categories of errors,
what specifically amounts to an abuse of discretion.
-: So to begin with,
it violates the public interest
and the separation of powers for this decree,
particularly as it has been used by JRC
and interpreted and enforced by the probate court
to continue for the consent decree to remain in effect.
-: So when does that trigger,
is there a timeframe where
there's a separation of powers issue
when a consent decree?
What is that time?
-: Well, certainly if not before then,
then by the time DDS promulgated its 2011 regulation
that prospectively banned level three aversives.
For JRC to defy that regulation
and to continue to try to place new individuals
on level three aversive plans.
And for the probate court to ratify and endorse
that view of the 2011 regulation,
that it was invalid because it unduly interfered
with the probate court substituted judgment authority.
-: So DDS issues or regulation,
and that causes a separation of power's problem
if the consent decree is continued to be enforced?
-: Yes.
-: And what's their legal authority for that proposition?
Other than Article 30?
-: The legal authority for I'm sorry, who's,
are you talking about the probate court's
assertion of legal authority or-
-: No, I, for the proposition that the,
that as soon as DDS issued this regulation,
it caused the continued enforcement of the consent decree
to be a separation of power's problem.
-: Yes.
-: But it's legal authority for that.
-: Well there's-
-: That can't I mean,
I get there are all kinds of problems with this,
but that can't be right because in 2010,
the judge makes findings in 2010,
again, 2010's, a long time ago,
ancient history in this world.
But in 2010, the judge finds that you doctored,
not you, but your client DDS doctored evidence.
That's 2010 and she's got support for that.
How would somebody else manipulate the documents.
And then in 2011,
you immediately passed this regulation.
In 2011, you're in trouble.
But I'm not sure that's the end of the discussion.
But that regulation that's based on doctored evidence
has to be a problem for you.
-: Your Honor.
I, that doesn't end my concerns about the judge's decision,
but that you're at your weakest point in 2010 and 11,
aren't you?
-: No, your Honor,
we emphatically reject the notion that
this was doctored evidence.
And if I could, your Honor-
-: She makes direct findings on that.
That Hal manipulates the documents.
Now again, in 2013,
there's another certification process
and it doesn't seem like you do anything wrong in 2013
and nor in 2016 and we're now in 2023.
That's a different issue.
But I just don't see how you can,
if you're focused on 2010 and 2011,
you've got a problem, don't you?
-: No, your Honor,
we do think this is fundamental legal error
that is reversible.
The court, the probate court's conclusion of bad faith
rested on the red lining of two documents.
One, the Hammad report in 2018.
-: Oh, forget about the Hammad report.
Let's look at the second report.
-: The second report,
the actual people doing the certification
find that you're getting a one year,
the center's gonna get a one year certificate
and there's substantial compliance.
Hal rewrites that and says they're not in subs-
I mean they're, they have work to do and gives them 14 days.
Something that, that's a big change, isn't it?
-: Your Honor
I urge the court to review each of the drafts
of the 2010 certification.
What you will find is that the certification team,
and by the way, you're gonna hear from the other side,
that supposedly the certification team was not independent.
There is no legal requirement.
And this was a feature of
the probate court's decision as well.
There is no legal requirement that
the certification team be independent.
By regulation they function as
the authorized department representative.
-: But the consent decree requires DDS to act in good faith.
Again, I'm gonna be asking all kinds of
questions to them about what relevancy 2010 has in 2023.
But in 2010, you've,
there are fact findings by the judge
that you manipulated the documents
and you passed a regulation shortly thereafter.
So I just,
I just feel like you're on week ground then, on bad faith.
-: Well, your Honor, if I could,
I'd like to spend a little time
on this 2010 certification report because
we emphatically do not believe
that this was doctoring or that
this is indicative of bad faith.
And we do think the probate court
committed legal reversible error
in its characterization and its findings
regarding the certification report.
That the certification team issued a draft
sent it to DDS that contained numerous findings
regarding the deficiencies at JRC
with respect to its level three program,
many of which had been extant
since before the end of the receivership in 2006.
-: And the focus of the case,
it's a heart-wrenching case
'cause the focus of the case is can
you use this electric, you know, the GED4,
is it inappropriate to use it on any patients
or certain patients?
That's what this case is about right?
That's what,
that's it's not about sort of the bigger picture
at this point because DDS wants to
eliminate the use of the GED4
and the center wants to continue using the GED4 right?
That's what this case is about. And what we have to decide,
right, whether it's appropriate to use that
for this limited category of patients, right?
Is it the least restrictive means of treating these people?
-: This court has to decide whether the various basis-
-: But that's the center of the case right?
-: It is a critical part of this.
It is about whether changes in law,
in fact warrant vacating a 36 year old
consent decree that by its terms
was supposed to last for one year.
-: Does that change the standard of review?
By the way, that's the one thing I'm,
'cause you have a very uphill battle
on abuse of discretion if that's the standard.
But this consent decree was supposed to end in six months.
Did the parties agree to the extension
when Judge Rottenberg extended this?
Was that consented to
or was that just unilaterally imposed?
-: Your Honor, I don't know the answer to that.
What I know that was that at the time JRC's license
had not been fully restored yet.
And so Judge Rottenberg relied upon that fact to extend-
-: But I'm just trying to understand though,
'cause we have cases,
I'm not aware of cases on the standard review
for extending a consent decree that was supposed to end.
Does that have a different standard or review
then that would help you a lot if that were the case,
but I just don't know.
No one cites cases like this where the consent decree
had a firm deadline.
-: Your Honor, we do cite some cases,
and I'm sorry I don't have the names of them
at the tip of my tongue,
but we cite some cases in our brief
where the consent decree itself was time limited
and that was a factor that led the court
to terminate the consent decree,
especially after the passage of time and-
-: Shift the burden of proof on-
-: I don't know that it leads the court
to apply a different standard of review,
but it does lead courts to conclude that
that standard has been met.
As we emphatically believe here for three reasons,
the public interest,
the significant change in both fact and law
and the fulfillment in good faith
of the purposes of the consent decree.
-: When you started out,
you were about to sound like excoriate,
the whole concept of the use of the GED devices
as it relates to the standard of care.
And in your brief you talk about a public duty
as to the highest standard of care.
My question, big picture is this has been around,
this debate's been going on forever.
I can remember how heated the debate was
in the mid 1990s as far as the use of
level three or level four.
Are we talking about the higher standard of care?
I mean, I have the concerns that 50 years,
when you look back, people are gonna say,
this was bloodletting.
On the other hand,
I feel like these families
and these people providing treatment
to people who really need it,
should have whatever hope they can have.
If this falls within the standard of care,
not the highest standard of care
as you reference in your brief.
Help me understand how that concern
relates to the consent decree.
-: Your Honor, we do not talk about,
in our view, talk about the standard of care
in terms of the highest or the best standard.
Although DDS's regulations do talk about
the least restrictive, effective form of treatment.
But let me in answer to the second part of your question,
let me say this,
DDS would not have brought this motion
to vacate the consent decree.
We wouldn't have spent three years litigating
in the trial court over this
and we wouldn't have spent two years
litigating this appeal if we did not believe,
if DDS did not believe that there is a more effective
and more humane way to treat.
-: Right and now that's what I was reading
that the judge said though in her findings
and her conclusions that she didn't find
that you really offered an alternative,
a specific alternative.
-: Yes, your Honor.
And we believe that was legal error, legal structural error.
-: Because you did offer those alternatives to her?
-: We did,
there was voluminous expert testimony
about the standard of care.
-: How's that legal error? -: Yeah.
-: Because what the probate court did was it said,
since you cannot prove DDS that you could more effectively
treat every JRC resident
with these alternative forms of treatment,
which are the standard of care instead of with skin shock.
You have failed to show a change in the standard of care.
-: But how could, well. Nevermind.
-: That's precise.
Precisely, your Honor.
How could we, how could we,
when patients at JRC have been treated there for decades.
-: Well and there are no long-term studies. Is that true?
-: Absolutely.
There is no long-term studies
demonstrating the efficacy of skin shock.
The studies do not address side effects.
-: She says, she makes direct findings that
there isn't a scientific consensus
to get rid of this treatment
for the most troubled self-injuring patients right?
She makes that very finding,
she refers to this ABA textbook.
She also refers to testimony from two or three
of these physicians right?
How do we find that error of law?
Because it's a, she weighs the different,
you put in three experts who say
this is inappropriate, beyond the standard,
but then she relies on testimony
from three different trained psychiatrists right?
That say the opposite,
that in these extreme situations where nothing else has
worked, we still want to preserve this op.
Doesn't she say that.
-: Answer in terms of error of law or error of fact.
-: Well, it's both your Honor.
I to clarify,
we think that even under a clearly erroneous
or abusive discretion standard,
that is an erroneous, reversible conclusion.
We do think that there are structural errors
in the way she assessed the factual evidence
that led to her error
erroneous conclusion regarding the standard of care.
-: But could you be more specific?
What is the structural error?
She held you to a too high of a standard?
-: Yes.
-: Okay. Because it was impossible to prove.
-: It was impossible to prove
that we could more effectively
that DDS could more effectively treat patients
with psychotropic medication where a JRC because-
-: And what would be the better standard,
the correct standard?
-: The correct estimation standard would be first of all
whether there's a significant change in circumstances
and to apply the actual definition of the standard of care,
which is the standard employed by the average practitioner.
The evidence at the trial-
-: They're not average patients I guess?
-: No they're not. They're not.
-: But I don't understand how your standard fits in?
-: Well, what we did show at trial, your Honor,
was that every other provider in the country and the world
treats the most difficult patients
with the most difficult self injurious
and assaultive behavior without the use of electric shock.
They do it in a host of ways with, first of all,
by doing a comprehensive assessment of the patient
by using a team approach right?
-: But now you're arguing the facts.
And on that, I think you lose.
What's more interesting to me
is that you suggest that the judge has made a legal error.
And I still am trying to capture that.
It's a, she held you to a higher bar
than you feel you should have been.
-: Yes.
-: But she didn't make that finding.
She made a finding.
Right. That there,
you haven't established that there's a consensus in the
scientific community that this should be eliminated for the
most troubled self-injuring patients.
That's her finding, isn't it?
You failed in two.
She said there's bad faith based on
a 2010 doctoring of evidence
and that you have not shown a scientific consensus
because there's conflicting expert testimony
on how to treat the most troubled self injuring patients.
Those are her essential findings, aren't they?
They weren't.
I mean, she's got a lot of other findings,
but those are the two findings she says
you didn't meet in the last couple of pages
of her decision.
-: Right, right.
And we think those are both erroneous as a matter of-
-: But that's clearly meaning that
we have to find those are clearly erroneous
factual findings right?
-: Your Honor, on bad faith,
we think that the finding of bad faith
is based almost entirely on documentary evidence
that this court can review itself.
And I would, if I may
come back to that in a minute because I-
Before you leave that though, I just,
'cause I don't know what we're going to do
when we read all this expert testimony,
which again is totally dated.
We're gonna be deciding something.
I have no idea whether there's
now a scientific consensus that this is bad or good.
This was when did the hearing took place in 2015?
Is that right?
-: And 16, your Honor.
-: And then we don't get a decision until 2018.
It's now 2023. I mean.
-: So the standard of care is what year
that we're looking at?
-: Well, your Honor,
we acknowledge that you're reviewing
the probates court's decision
at the time it was made
based on the record before.
-: That's not what anyone cares about.
What people care about is what's the standard of care today?
What are these patients going through today?
Should this be an available in the toolbox
for those who have hope?
Or is it just so antiquated it doesn't make sense.
I don't know how you calibrate that in 2015, 2012,
2011 or when the memo was written.
I'm only interested in the here and now
with real people and real hope and real concern.
This is deviates from the standard of care.
-: And Could we add to that?
Not only is this antiquated,
but this DDS is the DDS that was in 2010 and 11.
That's two governors ago.
Any of these people who are involved in this,
even working at DDS anymore, I mean is Hal,
Hal doesn't work at DDS right?
The person who doctored.
McGregor doesn't work at DDS right?
So we're analyzing a DDS that's
13 years old.
The last time there was misconduct in DDS
was in 2010 right?
That this decision is based on the fact that they didn't,
they manipulated the evidence in 2010 it's 2023.
-: Well, your Honor, obviously we disagree.
-: What are we supposed to do with that?
-: Well, let me tell you what the receiver did
in 2003 when the receiver recommended
the end of the receivership.
The receiver said the people who are now in charge
of DDS's predecessor
are no longer the people who were
involved in the eighties and the nineties.
Personnel have changed, regulations have changed.
The agency should not be forever
in subject to judicial tutoring.
-: Can I ask you one question right there?
Have the patients changed?
Are there new patients, additional patients?
Are we still dealing with
the same subset of same patients?
-: What's supposed to happen, Mostly the same patients,
your Honor. And the reason is because under 2000,
the 2011 regulation from DDS,
it is only supposed to be persons who are legacy patients
who had a level three plan as of 2011,
who may continue to have a level three.
-: But why do you say mostly.
-: Because in 2015, at the time of the trial,
there were 63 patients with level three plans.
I'm sorry, 64.
And now there are 53.
But we do identify in our brief.
-: Nobody additional?
-: There's not supposed to be anyone additional
JRC has used, relied upon the consent decree
to try to place new people
and has successfully done so,
as far as we're aware,
two occasions in defiance of DDS's regulation.
-: So the regulation permits this kind of treatment
for existing patients.
-: For legacy patients who had them in effect as of 2011.
-: And so in light of that,
how is this treatment not sort of out outside of all the
bounds of what is the standard of care?
If the own, if the regulation in fact permits it.
-: Your Honor, DDS made the decision it did
in 2011 to regulate prospectively
based on the consent decree.
-: Yeah but prospectively after 2011,
you're allowing the legacy patients
to continue to use this treatment.
And I'm questioning whether given that your position is that
this is outside the standard of care,
doesn't that regulation present a problem for you
from a factual perspective?
-: No, your Honor, we think that
if DDS in 2011 had tried to regulate retrospectively
in addition to prospectively,
JRC would undoubtedly have said that
that was a violation of the consent decree.
-: Basically, once you're free from
the shackles of the agreement,
you're going to regulate it out.
-: Your Honor, no decision has been made in that regard,
but I do want to say this,
that would be DDS's prerogative to do so.
-: But that's the article 30 issue right.
Because as I read the SJC's contempt decision
in the settlement agreement,
it gives lip service to separation of powers
and says, of course there's an Article 30 issue
where we'd take over the executive.
But then as I read it, every time there's a regulation,
when the regulation is found to be enacted in bad faith,
then you basically forfeit your article 30 rights.
-: Your Honor,
what I would say about the any potential future regulation
is this DDS would have to go through an entirely new rule
making process under chapter 30A .
Right of notice and comment JRC
and every other interested party.
If JRC felt that the regulation was improper,
they would be free to seek judicial review.
-: That's not before, I mean,
what's before us is whether the judge made a mistake in 2018
based upon the record in front of her
in denying the motion to vacate. Correct?
-: Correct.
-: Everything that happened post 2018 isn't before us.
-: That is true, your Honor, there are some things,
as you know, that we think are
judicially noticeable and Justice Lowy,
I think you asked about the standard of care now.
I would direct the court to the amicus briefs
filed by the ARC of Massachusetts
and the American Pediatrics Association
that talk about-
-: How can we, how can we,
use that as a standard of care
when the judge made a finding about standard of care
in lack of a consensus in 2018?
Then you want us to basically look at the amicus brief
and say the standard of care changed and the judge was wrong
based upon our review of the standard of care.
-: No, to be clear, I'm not asking the court
to rely on some new body of evidence
that renders a different conclusion
about the standard of care.
I we think that the amicus briefs identify
additional evidence that is simply confirmatory
of what we demonstrated at trial,
which is that the overwhelming weight of authority
is that this treatment is inconsistent care standard.
-: I think the first question Justice Wendlandt asked you,
or the second question is how do we get behind
or go beyond the judge's finding that there's no consensus
where she heard 40 days of testimony
and heard all from all the experts.
And you want us to say that was a clearly erroneous finding
and I'm not so sure about the whole standard at all as far
as what's a consensus mean? Does it mean one doctor,
two doctors three seven? I don't know what that means.
-: Well, along those lines, your Honor,
I think one error that the,
judge made was that she effectively required unanimity
in the standard of care.
She said the fact that this form of treatment
is banned and not used anywhere else in the country,
or as far as we know, the world
is not per se evidence of the standard of care.
It is hard-
-: Well it's not per se incorrect, is It?
-: Well, that-
-: Because the overall standard she's looking at
is the Rufo standard is whether
the facts have changed, correct?
-: Yes. Yes.
-: And and so the facts you say changed are that
we have new treatments.
-: Yes.
-: But how are they different from the treatments
that were inadequate before?
How have they so improved?
-: Your Honor, as the court is no doubt aware,
our nation has a shameful history
in how it treated in the past.
Those with intellectual or developmental disabilities,
often placing them in large facilities,
treating them with large
high doses of antipsychotic medicines.
In 1987 when the decree entered after four days of testimony
at a preliminary injunction hearing,
there may have been an argument that compared to the
alternatives, this is a reasonable form of treatment.
Now, everything that has changed.
The evidence at trial was that
there has been a sea change in the way-
-: And is there evidence that shows
what that sea change would look like
in people who have had this treatment
for 10 years, 20 years,
you've got evidence to show that you could switch them over
with no problem and they could just
go on these brand new medications
and everything would be just as good.
-: Your Honor, this is a good point for me to mention and
to urge the court to watch the videos that are in evidence.
-: Well, but didn't, didn't she,
she makes the exact opposite finding though.
She says some of these patients had been on a whole protocol
of psychotropic medicine and it hadn't worked.
And then this had been successful
for some of these patients who've,
and actually those patients actually testified before her.
So again, how do we deal with
that this place is alone? You're right.
But it also has a track record that she was presented with
and she found credible that it's been successful for people
who failed under these medicines.
So I What do we do with that.
-: Your Honor,
we think the testimony was substantial at the trial
that yes, many people come to JRC overmedicated,
they may have been misdiagnosed,
they may have been improperly treated
by other facilities and other places.
-: Some of the best facilities in the world right?
Some of these people had come from
the best teaching hospitals around the country,
McClane, top places in New York right?
It's not as if,
she's presented with that evidence right?
-: Your Honor, they,
they have been treated at other facilities and they came to
JRC and were treated according to JRCs treatment philosophy.
But we think that the testimony that was developed at the
trial was that this is not how patients can and
should be treated in 2015, 2016.
And it's certainly not how they should be treated in 2023
where they're assessed for underlying medical conditions.
That may be-
-: But how do we do the last part?
Because again, you know,
Justice Lowy's questions the same as mine,
which is it's 2023.
We have, I mean, for example,
the briefs talk about half the states have banned this.
Is that still the number or is, you know,
the FDA tried to ban,
the FDA banned the device,
but then it was overturned by the DC circuit.
Is this a case that we should get current information on
and send back to the probate judge?
So that we actually do this
based on current science and define
the issues more clearly?
And get up to date information on all of this?
Because say we blessed this,
in 2016, the judge, her findings,
we can't find clearly on this.
I take it we're gonna have the same exact case
brought in probate court two months from now
based on 2023 evidence right.
-: Your Honor,
if the evidence that was presented in 2015 and 16
is not enough to vacate this 36 year old consent decree,
then it is hard to imagine what would be sufficient,
both in terms of what would that's standard of care-
-: To be honest,
I find that really hard to believe
because in 2010, I know you wanna run away from this,
but in 2010 right before the regulation has changed,
there's evidence of sort of a political gathering
followed by a rewriting of a report.
But we're now in 2023 with a totally different DDS
that has demonstrated no evidence of bad faith
that's been presented after 2010.
I'm talking about 2013 and 2016.
So I'm just not sure it is the same case.
-: Your Honor,
we urge the court not to remand the case
to the probate court for further findings.
Please consider new evidence.
And the reason is because it took five years
from the time we filed the motion to vacate
the consent decree in 2013 until it was decided in 2018.
-: Well isn't that just the nature of a consent decree?
It's gonna keep going until you challenge it
and get it overturned, right?
I mean, so this is just gonna be a back and forth
unless we decide to vacate it right now.
-: Well, your Honor,
if this is not a good enough record
to vacate the consent decree,
then it is hard to imagine what would be good enough.
So, and sending it back to the probate court to hear,
and again, the new evidence
that I talked about in the amicus briefs,
that is, there's nothing new there.
It's simply an accumulation, a confirmation.
-: It confirms. -: It confirms.
-: It confirms the evidence that you already presented,
that the probate court rejected.
And we're supposed to review it
either for an abusive discretion
if we find it's a factual matter or as you say,
the probate court judge held you to a too high a standard,
which would be a legal error. -: Correct.
-: Even if we find that there was bad faith in 2010,
right before the 2011 regulation,
which you want us to enforce.
And so there's the exact pattern that occurred
in 87, in 95 in 2010, but that may have all disappeared now.
DDS may be a new agency that's not so result oriented
that it will change the documents to get the result it was.
You don't want that possibility to develop that.
-: Well, your Honor, respectfully,
I disagree with the idea that we're running from what
happened in 2010. We absolutely believe-
-: You can run from it or you can accept it.
But she has made fact findings
that the Assistant Secretary of Health and Human Services
changed the report that gave them
a one year certification and also changed the report that
said they were in substantial compliance right after a
meeting that occurred with, you know,
upper higher level people in the governor's office
at the time.
So that's a, that's not, that's gonna be tough to find.
That's clearly erroneous.
-: Your Honor,
based on the documentary evidence which this court can
review de novo,
we feel very strongly that what happened in 2010 with
respect to the certification report,
is the certification team playing its role in assessing the
deficiencies and the conditions on renewed compliance.
It was Dr. Levandowski of the certification team
who first suggested a corrective action plan
and then the commissioner of DDS
exercising her clear regulatory authority to.
-: She finds him incredible.
I mean, we can look at the documents,
but you're running against a lot of fact finding
in about what happened in 2010.
-: Okay. Do we have any other questions?
No, thank you very much.
-: Thank you your Honors.
-: Attorney Stern.
-: Good morning.
I'm, excuse me, I'm going to get some water,
I'm Max Stern and I represent
the class of patients and their parents,
let me say there are five facts
all supported by the court below, which make,
which themselves make this dismissal of this appeal
a dispositive matter.
The five are these one,
the evidence was very clear that no other treatment
has worked for this very small and endangered
group of patients
who were previously tried on everything else.
Secondly,
the decree requires that aversives be a last resort
and that is exactly what the judges repeatedly have found.
Furthermore, the alternatives, we just heard
that there's been a sea change,
not so the alternatives to the,
this particular treatment for this very small
cohort of patients have not changed.
So-called PBS that's been around forever.
That's using positive methods
in order to improve behavior as far as the
psycho pharmaceuticals are concerned.
The evidence was that it hasn't worked,
that it hasn't changed.
They had the person who was in charge of testing
for the FDA for the so-called miracle drugs,
Risperdal and Abilify.
And he testified that they were a big disappointment.
They were not better than a placebo.
So moreover, the drugs have their own downsides.
So the science has not really changed
and it certainly has not changed.
There is no alternative for this small group of patients.
That's fact number one.
Fact number two.
The GED skin shock treatment at JRC
has in fact been effective for this population.
DDS's own experts have conceded that it quickly reduces
these problematic behaviors to zero or near zero
and that it's been very effective in many, many cases.
And the statistics show that as well.
Judge Field referred to a study of 189 patients,
which were all the patients that had gotten this treatment
from the year 2000 on.
And the the statistics showed
that from begin the average-
-: Can I ask some factual
'cause she makes a lot of factual findings
that I'm not sure I can square with this.
So they don't provide psychotropic,
they haven't reviewed a number of these patients
for five or 10 years whether they
could benefit from psychotropic medicine right?
It's against the philosophy of the center right?
Use of psychotropic medicine?
-: You know, there are persons who are on drugs.
It's not the majority of 'em.
-: But she says that for, I can't remember,
there's fact finding here that says
there hasn't been any attempt to use an alternative
for five or 10 years
for a number of these patients right.
And then she also,
I mean the consent decree requires
you can only use the GED
or the GED actually happens after,
'cause you can only use level threes
as the least restrictive.
If anything else works,
you shouldn't be using level threes right?
Is that, that's fair statement?
-: That's right. Last resort.
-: But she says then there's been
no look at psychotropics for at least five or 10 years
for a lot of these patients.
And even in her conclusions,
I read them as suggesting that she thinks some of these
patients may very well benefit from this.
So what do we do with those findings
they haven't looked for five or 10 years
for some of these people being regularly shocked
about whether a psychotropic meds could work.
And there's evidence before that there are
all kinds of new psychotropic meds.
So what do we do with those findings?
'Cause again, if you are shocking people
that something else is better
than if something else is better,
you shouldn't be giving them the GED4 right?
-: That's right.
-: Is that a new, but there is no
change in circumstances that would justify lifting this.
-: There is no evidence that these new drugs are better.
-: But she said how do we know that
when she says you don't consider it
for five or 10 years and the scientific community
has got new drugs that may work
on some of these people right?
-: Let me get right to what I think is the most critical.
-: Don't duck the question cause we're struggling-
-: No this is directly to your question, your Honor,
which is the way the consent decree works,
'cause of the consent decree
is a method of total individualized medicine.
That's what happens.
It comes up first of all, that when you start
there is a very thorough vetting of this patient,
the patient's history,
everything that the patient was on before.
All the circumstances of the patient.
And it goes through all kinds of committees
and analysis and so forth,
and then ultimately gets to the judge
in the substantive judgment proceeding.
And in that case, there's an adversary hearing.
There are experts that can be-
-: That's the start of the process right?
But then don't you have to,
I mean we've got new meds on the market.
We have new treatment protocols, but we haven't,
there hasn't been any reconsideration of this
for five or 10 years for, and maybe even longer right?
I mean for, are some of these people
and it, and then I've we've got fact findings
that say it sometimes takes five or seven years
to lower the amount of time this works.
I mean, we've got, you know,
that some of these people are
being shocked for five or seven years
before you start seeing results, right?
-: Well, that.
-: That's a fact finding in here, right?
-: No, I think there was a,
there was a fact finding that sometimes there's,
that there's a regression and sometimes it'll go up,
but it can come down again.
But if I can get to the-
-: Can you add, but so again,
I understand the judge approves it initially,
but then we can go on for years and years
without a review of this in the sense that
a review of whether a psychotropic medicine
may provide an alternative. Go ahead.
-: There is a review every single year.
The judge reviews us every single year
and every three in each case.
-: And the judge is presented with the fact that
we didn't consider psychotropics and we-
-: I mean first of all,
it's an adversary hearing every single year
there's appointed counsel.
Counsel can retain expert more importantly
for present purposes.
DDS has the absolute right to intervene, in fact.
-: But can I, let me just,
let me confront just the facts for a second.
Finding 201 peak GED applications for some JR students
occurred in the 7th, 9th, 10th, or even 12th year.
And we, and I take it, when we look at other findings,
we know that there's been no look back at drugs
for five or 10 years.
I mean I, again, I can't make the linkage,
but so for-
-: The peak, if there's a peak,
it doesn't mean that this is what, you know,
what it was consistently the case.
-: Well but it means that-
-: It could be aggression.
Could be a relapse.
-: Can I ask a question on your fact number two,
you said that this is a remedy of last resort
or treatment of last resort.
And obviously the regulations and the consent decrees say
that there needs to be danger to self or others, right?
There's evidence in the record
that the treatments were given when someone
reached for a tablet and some other problematic behavior
that didn't rise to a level of self-injure
or harm to another.
What do we do with that finding?
And the judge makes no findings about this whatsoever.
This was just troubling.
So what do we do with those facts?
-: This is referring to what the videos that, well,
first of all, in some cases they're wrong.
In some cases they haven't paid attention to the antecedent.
And what JRC does and what the ABA method is,
is to look at the intercedence and what leads to a certain
problematic behavior and you go after the inter decedent.
But that's true by some.
And some of them are just when the staff misfired,
the staff did wrong in those cases.
That doesn't go to the treatment itself.
Essentially what they did is
they cherry picked among hundreds,
if not thousands of videos and they came up with these.
JRC videos every single application of this
in order to be able to monitor them
and correct problems where they come up.
-: Was it a problem that the judge
didn't confront these incidences in her report?
-: I imagine that she thought it wasn't,
it wasn't a critical fact here
because it didn't go directly to the treatment itself.
-: What goes to whether or not treatment
is being applied appropriately, right?
-: Pardon me?
It goes to whether or not
the treatment's being applied appropriately.
-: Well, it can happen
that it's not applied appropriately
in a given case that can happen with any treatment,
but that doesn't say anything about
the general application of this particular treatment.
-: And Counsel,
-: If I can get-
-: Yeah. No, go ahead.
-: I just wanna get back to Judge Kafker's issue
because what I didn't finish saying
is that when this consent decree was originally issued,
DDS was required to evaluate every single case
and make a recommendation to the court.
It came back to the court and it said,
we don't want to be required to do that anymore.
We want it to be discretionary.
And ever since then, it has just opted out.
But, and then it has-
-: And I get that.
I get that.
-: If I could just finish this sorry.
-: Yeah, go ahead sorry.
-: And then it has the right to intervene in every case,
both at the beginning and in the yearly reviews.
And furthermore, it has independent psychiatrists,
which psychologists,
which it retains to make a thorough review
of each case every three years.
-: I get that they may be sleeping on their rights.
-: But they have a right to intervene and say,
this particular patient,
should be tried on such and such a drug?
-: I'm trying to work though from the judge's fact finding.
Can you help me for again, another fact?
I'm, to me, I'm reading conclusion.
This one really particularly concerns me.
She goes, not withstanding the above data
I'm reading from page 49,
not withstanding the above data and testimony,
physical aversive treatment has not been effective for all
JRC students and may not be the least restrictive procedure
available to treat every student
receiving physical aversive treatment.
Isn't that a finding,
saying that students are getting shocked
who shouldn't be getting shocked?
Isn't she saying that?
-: I think what she's saying or what she's acknowledging is
that what this regime provides is individualized medicine.
That there is no particular therapy that works for everyone.
Certainly true that the drugs don't work for everyone
and that PBS don't
work for everyone and don't in particular work for the
hardest cases.
All of the experts, all of DDS's witnesses admitted that.
-: But again, but it's, it's a, we've got two, we've got a,
a limited set of critical findings and we also have to
decide whether you're complying with the consent decree.
And there are a lot of changes from when the consent decree,
I mean GED4 is three times the charge of GED1 or
whatever it is, right?
GED4 didn't even exist at the time
of the consent decree.
Now GED4 is the primary level three aversive right?
-: And I don't know, is that so?
-: I think it's exclusive, right?
Based on, again, I'm reading old facts
that I don't know what's going on in the-
-: Don't recall what the numbers are, but both are used.
I know that.
-: Both the yes, the GED1 and three are used.
-: On different patients.
-: I get it.
But isn't she saying that they're using this
on people who sh shouldn't be getting it?
If that's the case,
is there some fact finding issues that we can't,
that we've got issues with that you may be
violating the consent decree
if it's based on her own findings.
-: What she also says is
that there was no, that the DDS
didn't do any kind of a particularized focus
on individual clients.
They just dealt with it as an abstract matter,
as a one size fits all matter.
And what she's saying is-
-: Right but both sides are guilty of that right?
The center's philosophy is not to,
and I'm not saying either one is right or wrong,
but the center's philosophy is
we want to get people off drugs
and we want to use this shock treatment
as a physical aversive
again for the this group of people
who are self-inflicting injury.
And nothing else has worked.
They're on the opposite end saying,
we don't like this treatment,
we want to eliminate it all together.
That's why we're here.
And you can't resolve this.
-: The latter is the case, but representing.
-: Both sides. That's true.
Isn't that true?
-: Representing my clients
who are the parents and the patients.
And our parents, who believe me, are not,
these are very committed, very informed.
-: Just terribly difficult.
-: Very intelligent people.
I have two time winner of the Pulitzer Prize.
I have a Harvard professor, I have a doctor.
These are all persons-
-: But no one is suggesting your clients
are not acting.
-: But what I one, I'm sorry.
-: But we've got problems in the other,
we have to decide whether they're acting in bad faith
and whether there are limited number of questions.
And my problem is I don't know how to resolve them
based on this fact finding.
Let me just tell you the three questions
that are really striking me.
One is, is there a scientific consensus?
'Cause if there is now,
is there a scientific consensus in 2013?
Is there one now?
You're, I take it saying that the judge got that one right.
He is saying the exact opposite.
We're gonna have to go through that.
The second one is bad faith.
Let me, here I'm more troubled
and I'd like you to help me out.
The last act of bad faith by DDS is 2010.
How do we decide that DDS is enacting in bad faith
when it's 13 years later and actually
even during the time period the judge is evaluating
the 2000 certification process.
They certify the center,
they give it a one year certification, right?
There's nothing improper about 2013.
So I is this bad faith finding stale and meaningless,
particularly in 2023?
-: Well, it's taken this time to get here.
Once there was a decision by the court,
the DDS filed a notice of appeal and I don't think they-
-: Council, it could never get any better. Could it?
Because you can't do a long-term study.
You can't take your patience one by one and,
and try it just to see what would happen
because that's detrimental to them.
So there's no evidence that was developed
and I don't understand what evidence could be developed
that would show there's something better.
-: Well, I certainly think there is none
and we're aware of none.
And the DDS has not produced any that we're,
that we're aware of.
So I don't know how else we deal with it.
-: Counsel can I ask you a slightly different question
away from the facts.
When is it that a separation of powers
trigger occurs when we have a judicial branch oversight
over the treatment received by individual patients?
Now, when, when does that,
because this has been going on since 87,
is the decree entered right? Is that right?
-: Well, first of all this.
-: So I guess I'm wondering when,
when do we have to stop?
-: Alright, the two questions
I think when is separation of powers and
the other one is when is this over? Right?
I think as far as separation of powers,
that issue was raised and resolved by this court
in the contempt case back in 1995.
-: Right but I guess my question is,
at some point we reach a point where
that becomes a problem.
And I'm wondering when, are you saying never?
-: It reaches a point when we-
-: As long as the decree is necessary, it's never a problem.
-: When the conditions for terminating a consent decree
are found, which are a substantial change of circumstances,
warranting termination of the decree,
which could be one that DDS no longer
insists that this treatment not be used.
That could be one change of circumstance
or there could be some new scientific development
that really does come up with a miracle drug
that doesn't have these awful side effects and so forth.
That could be a change of circumstance.
And believe me, as far as my clients are concerned,
if there was such a miracle drug,
they would be happy to advocate it.
And if there is one indeed that is what exactly what the
consent decree process is for.
DDS should come forward and say there is such a drug,
this particular patient should get it
a judge could then consider it.
-: Attorney Stern. You had started by saying you had five,
you said you had five points and I think you got to two.
-: Well, number one was nothing else has worked.
Number one was nothing else has worked.
Number two is this particular one has worked.
Again for this tiny endangered population.
The third is,
there hasn't been any evidence
of significant harm to anyone.
Yes, indeed, there is pain.
There is a two second transient pain.
That's it.
But and the judge did make findings about that.
There was no evidence of any,
substantial or lasting harm.
Fourth,
as far as standard of care
and the acceptance in the community,
DDS's own psychologist testified
that you need to have this as a last resort.
Dr. Nicholson, I mean not Dr. Nicholson, I'm sorry,
Dr. Levandowski, who is the chair of the certification team.
-: One question I had on that,
did he say that you need adverses
or that you need this electric shock treatment?
-: Well everything was focused on electric shock.
Well this whole case was dealing with electric shock.
And so people referred to physical aversives as well,
but they were all talking at all times about electric shock.
So there was Dr. Levandowski, there was the,
of course, the independent psychologist
who DDS retained to do these three year reviews.
They testified.
There were the remarkably the members of the
so-called PBS committee,
which were assembled and informed about the change in the
regulation after it had been decided to seek this
regulation, these psychologists all said,
you need to have this as a last resort.
-: What's your fifth point? Yes.
Thank you.
-: And fifth was the rigorous
vetting process that starts at the beginning,
starts with the consent of the parents,
starts with everything else,
and then goes on a yearly, in a yearly basis.
And JRC has no excuse for asking this court
to decide this as a one size fits all
rather than coming into court in an individual case
and making its case then.
They did it once in the last almost 30 years. Once.
-: You mean DDS? -: Pardon me?
You said JRC you mean-
-: With JRC? Yes.
And they prevailed in that case.
Other than that,
there are thousands of hearings every year
in Roger's decisions with developmentally disabled or,
and other mentally developmentally disabled persons
in their care,
so-called Rogers hearings in which the issue is
whether they shall be prescribed psychotropic drugs.
A DDS participates in every single one of these.
And if they can do all those,
why can't they do less than 60 people in the JRC.
-: In the absence of a consent decree,
it would be within their power probably to do this right.
It's the consent decree.
They want to eliminate the practice altogether.
And the reason they lost-
-: I honestly don't think so.
I don't, I think that's actually beside the point here,
because there is a consent decree and they haven't shown the
conditions for terminating it.
However, the fundamental law of Massachusetts
has always been,
which is that any person has a right to have to accept
or to decline therapy as long as it's
prescribed by a licensed healthcare practitioner.
-: That's one of the things I'm confused a little bit about
if the legislature banned this, this couldn't be done right?
-: Yeah. Yes.
-: And if there is the medical community itself,
I guess can't eliminate certain treatments. It can.
So the regulators and the legislature are the,
and the federal government are the three people
who were able to ban things in total, right?
-: The legislature passes the laws
and it could do that, but it hasn't done it.
It's been bills have been sent, numerous bills
have been filed and the legislature to do that.
It has not made it unlawful nor has it given authority to
JRC to do it. So JRC has no more power to dictate
what treatments can be used for this population
than the board of registration and medicine
has a right to tell Mass General Hospital
what kind of surgical procedures that surgeons can use.
-: Just for the record, I wanna make sure
you're saying DDS doesn't have the right,
you said JRC doesn't have the-
-: I'm sorry. Yep. You're right.
-: I just wanna make sure for the record.
-: DDS doesn't have,
DDS doesn't have the fundamental power it claims to have.
-: So if there wasn't a consent decree,
DDS could not pass this regulation saying that
because they can,
they pass regulations governing certain,
I mean they have no ability to pass a regulation banning a
treatment protocol. Is that right?
So is that what you're saying?
-: Brought back to how this all started?
Was when they first approved JRC,
it was then called BRI to use this therapy
and then they suddenly turned around and said,
no, you can't do it. And they issued an order.
-: Can you just answer the more basic question?
Does DDS have the authority to ban? Forget about,
I understand the consent decree, bad faith, all kind.
You can lose your regulatory power by acting in bad faith.
But absent bad faith, absent of consent decree,
could DDS do this legally?
Could they say this is a practice we do not tolerate to?
-: No. -: Okay.
-: I mean, originally that's what they did
and that's why they were enjoined
and it went up to the appeals court and it was affirmed.
And that's when they entered the consent decree.
-: So they're, everything they're trying to do, in your view,
is beyond their authority. Forget about the consent decree.
-: They been given the authority by the legislature,
you know, to do that.
But they haven't been.
-: So they, I mean the author,
they are empowered to act by the legislature
in various ways.
I take it when we read their empowerment provisions,
it doesn't give them the ability to ban a particular
practice of medicine.
-: Right there is a statute.
-: You agree that they have the authority
to limit the practice to the injuries
and self-injures right?
You agree They have the ability to restrict the practice
level three aversives, right?
-: Well, they.
-: They have the regulatory authority to say
what level three aversives are only used
in these criteria. Correct?
-: That has certainly not been contested on our side.
-: Okay. I'll take that as a yes then.
(laughing)
-: Okay.
-: Alright. Unless there are any other questions.
-: Okay. Attorney Flammy,
are you gonna talk about something different,
a different aspect of this?
-: No, I made some notes.
First of all, good morning Justices.
I represent the Judge Rosenberg Center.
I made some notes about some issues that came up,
which I think I can add some clarification on.
Number one, there was a question about the GED3 device.
The GED4 device.
The GED4 device is used on very few clients.
It's mostly the GED device, which is the lower level.
It's confusing in the record
because it's called the GED3
only because some modifications were made to the device.
Some safety features were added after the original design.
And you have to come up with another name.
-: It's triple the shock though, right?
-: Not GED. Not GED3.
-: That's the one that is a .15 what?
-: GED4. Yes.
You go from 15 milliamp to 45.
-: Is that a change in circumstances itself,
that you're using a device that's three times as powerful?
-: No, there were, there were many programs and,
and clinicians using skin shock device.
JRC did not develop anywhere near the first one.
The first there was the Sabre6
there was the CBUS that was developed at John Hopkins.
So the use of skin shock
and our opponents referenced that in the,
in their brief was already in use
in many programs and with and with many people.
So this was not a new development that-
-: Oh, but it wasn't in place
during when the consent decree entered.
We had no electric shock at all.
-: No.
-: But then we've went from GED to GED4-3,
which is three times as powerful.
-: Your Honor I wouldn't phrase it that way.
The GED is what most of the clients get.
A few clients get GED4. But what GRC
was using at the-
-: Can I ask where in the fact finding we can make,
how do we find that in the facts?
'cause I don't remember that.
Is that in the fact finding?
-: I'm sure we can send your-
-: No. I again, we have fact finding, you know,
you guys don't-
-: Oh, in the judge's fact finding, I don't recall.
Okay, judge.
I can look at that.
-: Okay. We can figure it out ourselves.
-: And it is in the record.
But at the time of the consent decree, JRC was using,
and the court was approving spatula spank,
which was this huge item with a,
with a sort of a rubber end and and a big log handle.
And they were spanking the clients with it.
And that was much inferior to skin shock
because you can't control how the staff does it,
how hard they do it.
Skin shock was a much better device to use
to apply an aversive consequence.
So, you know, DDS,
this case evolves around a civil rights lawsuit that was
filed by the,
by the parents because OFC had taken away this treatment.
And OFC decided to settle that case
and actually sought a release from the class
for her conduct.
So this is about people's civil rights
and the stakes couldn't be higher.
This is about clients that can kill themselves
and have killed themselves. Fortunately not at JRC,
but in other programs
because of the severity of these behaviors.
So when we talk about people's rights,
we're talking about life or death.
The parties, your Honors
did agree to the indefinite extension
of the consent decree that was asked.
And in fact, a few years after the consent decree.
-: When did they agree to the indefinite extension?
-: So there was a six month review.
And then there was another six month review.
So that's a year after.
And at that time, Judge Rotenberg said,
I'm going to extend this indefinitely,
and nobody objected to it.
-: All right. Well, did they sign a document?
I mean, a judge tells you I'm gonna do something
and you sit there, they may not have objected,
but did they, was this a,
I mean, I'm not sure that constitutes consent
when the judge is sort of saying I'm doing this.
They didn't object is what happened. Is that right?
-: I believe so, your Honor.
Now, but interestingly enough, at the request of DDS,
the concent decree was amended a few years later.
It was amended because one of the obligations DDS had
was to provide these independent clinicians
to evaluate the clients.
And there was a requirement that
that happened in every case as soon as JRC got-
-: And they wanted it to be discretion.
-: Yes, I'm sorry. Right. At their discretion.
So this was an active consent decree.
This was not something that everybody was standing around
waiting to end after a year. It was ongoing.
There are a number of studies-
-: Was that the last amendment to the consent decree?
The last time it was revisited.
-: The only other time it might have been amended.
I'm not sure your Honor
is when OFC actually came back into the picture
which is now called EEC
to start licensing again JRCs group homes
for folks under 22.
I'm not sure if it was amended or not at that time.
Your Honor, in terms of the,
the argument that this is,
there's a structural problem here
because the judge set the bar too high
to prove that this is a allegedly
no longer part of the standard of care.
It was DDS's own expert, trial expert,
Phil Levindusky, the longtime chairman
of the certification team that said
this treatment is needed. It's part of the standard of care.
It is helping the patients at JRC.
They'd be harmed if they didn't get it.
The JRC is providing excellent care.
The staff is well trained.
The the treatment is high quality,
excellent data collection, excellent documentation.
So there was, and then there was Dr. Bacardi,
the recently retired DDS clinician
who sat on JRCs peer review committee.
-: Reconcile all that with DDS's view that
this is the only place and this is a complete outlier.
How do you reconcile that testimony with their position?
-: Yes.
It was one of the national experts,
could have been Dr. Fox,
I can't remember who was interviewed by Dr. Hermad
at UMass Medical Center
when he was asked to look into this,
who said, yes, you need level three,
you need it for these severe behaviors.
But it's such a small, thank god,
group of people that have this problem.
You could probably have one institution
in the country using it and that'll be enough.
So fortunately very few people have this problem.
JRC receives clients from all over the nation
for this problem.
And also having represented JRC for 33 years.
I can tell you it takes a lot of courage
and a lot of conviction and a lot of strength
to make this treatment available
for people where nothing else works.
Because you get hammered in the press.
You know, you have to deal with government bad faith.
But JRC's sole mission is to be there
for the clients that have been treated
in many of the great treatment institutions in this country,
including treatment hospitals and nothing else works.
And on the issue of drugs, your Honor,
JRC has psychiatrists, it has a whole devy of experts.
-: That those fact finding, 'cause again, we're,
we're not dealing in the abstract we're dealing with.
She's made findings that for five or 10 years
there's been no, you know, drug review essentially.
She also makes that finding,
I read to Mr. Stern about that
some of these people are getting treatment
who shouldn't be getting it
'cause it's not the least restrictive right.
She makes those findings.
What do we do with that?
-: Your Honor there are substituted judgment proceedings
as Mr. Stern mentioned, those hearings every year.
You know, I would love to see this.
-: I'm just, tell me how I, 'cause again,
we've got fact finding that raises some questions.
Whether some people are be, again,
the consensus degree says don't do this
unless it's the least restrictive.
The judge recognizes that,
but she also says that some people are getting it
who shouldn't be right.
I didn't misinterpret that sentence right?
-: Your Honor, I, in my view,
it was more of a concern than a finding that
that is happening.
And how could that finding,
overturn the finding of whatever probate judge in
Massachusetts has approved that treatment?
-: Well, probate judge gets one look at this
in the beginning of the process.
I take it, these people aren't brought back.
-: But is that true, isn't it annual?
Yeah, it's an annual review.
-: Yes.
-: So there is one hearing to start
and every year there's an another hearing
at which DDS is invited to attend.
-: Yes.
Under this court's decision, in the Whedon case,
any treatment could be antipsychotic medication,
which you have to get court approval for.
Any of that treatment. Extraordinary treatment.
It gets initially approved by the judge
and it must be reviewed every year or cannot be used.
-: And, and that would include the ability
to have a substitute treatment
of psychotropic drugs, correct?
-: Yes. Yes, your Honor.
And would absolutely apply.
I mean any-
-: If they were to appear in those hearings and ask for that,
and a judge would have to consider that.
-: Yes. And then you have each client at JRC,
just like the Rogers cases,
the antipsychotic medication cases,
has a court appointed lawyer
and they can bring the case before the judge at any time.
And by you know,
JRC would love to sit down with DDS
or any expert they have on any case
where that there's a feeling that a drug could work
or something else would be least restricted.
-: The question I have that I think other people
have asked as well
is at what point does Article 30 weigh in here?
And do we say that the department has forfeited its right
to regulate this particular institution because it's decree,
I mean I get the findings of bad faith.
So there's essentially a give and take where it says,
well, you can regulate, but if you're regulate in bad faith,
you're outta the picture.
And that's what we found in our contempt decision.
But that's an older decision at some point
do they get to regulate this institution?
-: If DDS could, in my view, resist the,
the need to engage in bad faith.
I mean you think about the last,
the 2011 ban that they promulgated,
it's pretty clear in the, it's very clear in the record.
They never did any research to support that.
It was right after the 2010 bad faith.
They never reached out to any JRC parent or family
or any clinician, hey, we're thinking about banning this.
We know it's used at JRC.
Why do you feel it should continue? Didn't do any of that.
And commissioner Hal was writing comments,
that's for the advocates.
-: But isn't that part of their rule making authority
where supposedly they have a rule
that restrict severely level three aggressives,
they have to send it out for notice,
they have to have hearings and then you can be heard.
How come that isn't,
how come that process can't be in this case?
-: Because DDS has proven over and over again
that banning this treatment or stopping it is the product,
not of medical evidence, but of bad faith.
Because DDS cannot say to the anti aversive advocates,
you know, this is a small population of folks, they need it,
their parents have tried everything else,
it's court approved.
They can't do,
they start to engage in this bad faith behavior.
-: Let me ask you to help me out on this.
Do I have any reason to be concerned that,
that what's being analyzed is a standard of care
of many years ago, maybe seven, eight years ago.
And my concern is, what is the standard of care today
for these patients?
And we're trying to reconcile 'em,
we're trying to address a really difficult issue
of these patients that need to have some hope
that their parents love them to death.
On the other hand,
we are worried about whether or not the treatment is just
outside of the standard of care.
And to me whether it was within the standard of care in 2016
is not really something that I'm going to lose sleep over.
I'm more concerned about here and now.
-: The ambulances, sadly your Honor,
still pull up to JRC with a client from
some teaching hospital or another great institution
with the person in four point restraint
on massive amounts of medication
'cause they can't stop the behavior.
Those ambulances are still coming to JRC
and they have, these people have blinded themselves.
They have gouged out their eyes.
I understand the court's concern,
but the parents' concerns are even greater.
JRCs concerns are even greater in the moment.
There's a treatment that would be as effective or close to
as effective, less intrusive.
It will be used before this court or the probable court even
has a chance to consider it. The parents will do it.
-: But just to be clear,
if somebody pulls up in an ambulance to JRC
and four point restraints,
they are not going to get the shock therapy. Right?
-: The the shock therapy can only be used once, you know,
usually JRC will treat a client for at least a year,
try everything else again.
And including, JRC has the best ABA program in the country.
I'm talking about non aversive positive only.
And only when all of those things won't work will JRC then
seek the parents' consent.
The parents will look at all these parents
try the skin shock device,
which by the way, two second application,
the average client gets one every two weeks.
-: You get the parents' consent
and who, what else do you get?
-: And then you have to go to court.
-: Can I ask-
-: And you have to have a doctor review,
it was also a peer review committee reviewed.
You have to have a doctor review.
-: This. This has happened to not legacy patients.
It's happened to all patients. Correct?
-: Yeah. I mean there,
there have been new clients since the trial.
You know, there has been great improvement
in this area in the terms of early intervention.
That didn't exist probably back in the eighties,
early intervention.
And early intervention I think is lowering
to some extent the folks that get,
'cause as they get older,
they get more violent, they get more difficult.
-: And, and this probably isn't a fair question
'cause given the population that the institution serves,
but is it 30% of the population.
-: Is what? I'm sorry, your Honor.
-: The 30% of the population that has a level.
-: Yeah, I know DDS I think that was in their brief 30%.
30% yes have some behavior problem,
but it just could be raising their voice or,
you know, it's,
the people that have this problem
where they're banging their heads until they have a-
-: Well I thought the record was there's 60 people
getting this kind of treatment.
And there's how many people that the center serves?
-: There's about 302.
-: Yeah so it's 60 something out of 300.
-: 50 I think are receiving the treatment.
-: Okay so we can do the math.
It's not an insubstantial percentage.
-: Now many more did, I mean there are many,
many clients at JRC right now
that used to receive the treatment.
The treatment was successful in stopping that behavior.
Once you can get these behaviors under, to stop,
you can teach them, you can teach them skills,
independent skills, you can educate them.
You teach them replacement behaviors,
they can use those behaviors rather than banging their head.
So you have a large number of clients at JRC
who were on the GED for a period of time.
JRC was successful in treating them as replacement behaviors
and they don't need it.
And they're living fantastic lives, living in the community.
-: And the instances that Mr. Stern said were cherry picked,
how do you answer that,
you have the same answer to that?
The the ones that.
-: On the videos?
You know, I mean,
how is this the highest practical professional standards
they're having these two psychiatrists
and a psychologist look at a one minute video clip
and say, oh, I would treat this person here.
They've never met this client. They've never evaluated them.
They've never looked at their records.
And yes, I mean JRC is video monitored,
recorded every classroom, every hallway, every group home.
So there's a massive amount of videotapes.
So what they, and they wanted it produced
and we produced and so they looked through it
so they could find instances where
things didn't quite look right.
And that's not evidence of anything.
And really all that would potentially be,
is evidence that it wasn't done correctly
at this particular time.
But these two experts that did this,
they don't know these clients.
-: Okay. I have one thing I'm troubled by
is I haven't had any evidence of bad faith since 2010.
Is your point that because they want to eliminate this
treatment in and of itself is evidence of bad faith
because they want to get rid of the GED4 or the GED.
What is that alone sufficient to support
a continued finding of bad faith?
Because again, 2010 is 13 years ago.
In 2013, the certification process seemed to
have been done properly without any mischief.
So is that your position now
that it's bad faith because they
wanna eliminate this and they don't have the power to do it?
I'm just trying to understand what the bad faith is now.
-: Right they want to eliminate it
without any medic medical basis for doing it.
They want to eliminate it
without having an effective alterative.
-: They have a lot of medical people
saying it's not good.
Including people who practice in the area.
You have others who say the opposite, but is that-
-: Well, their own experts said it was needed.
Phil Levindusky, you know,
well they have had psychologists at McClane Hospital.
-: I haven't read the 43 days yet. But.
-: I would ask your Honors-
-: 'Cause again, I'm,
I don't see this DDS having a lot in common
with something that happened in 2010.
But I take it the thing that's common is
they still want to get rid of this.
And I'm just trying to understand,
is that enough for there to be
a consent decree in place here?
Because I understand a consent decree
needs to be in place if you're manipulating documents
and not regulating fairly,
but I don't see why there should be
a consent decree in place otherwise,
unless they're doing something improper.
-: For them to argue today that this court should vacate the
consent decree based on the trial record
that your Honors have
that is seriously imperiling the clients of JRC.
-: What we need to remember is that
we're not looking at this record and deciding
what would we do?
We're looking at this record to see
whether the probate and family could judge
abused for discretion or made an error of law.
-: Yes. Yes.
And the standard is a clear showing of abuse of discretion.
You know, it's not even about,
I would argue not even about whether this court would make a
different conclusion than Judge Field.
Did Judge Field look at the relevant circumstances
and did she weigh them.
And you know, obviously our position is,
it wasn't even a close call.
I mean, their own experts said,
even the ones that didn't support skin shock,
their own experts said, Dr. Zircony, Dr. Nicholson,
that their treatments, the ones they're proponent
won't work for everybody.
Dr. Nicholson testified about Hogan.
Hogan Developmental Center is a place where the DDS runs,
where they put these clients with these severe behaviors.
And we, as part of discovery,
asked to visit that program and to take photos.
They were putting their clients in jail cells.
In fact, this is developmentally disabled people
with severe behavior disorders.
They were worse than jail cells.
They were completely padded. No windows.
The only thing was a tiny window.
You could look through the door to see.
-: Is this on the record though?
-: Yes, it is.
And and we took photographs, your Honor.
And this is what DDS was offering instead of what JRC has,
where they live in the community, they get an education,
they spend time with their family.
DDS wants to send them to Hogan.
And their own psychiatrist, Dr. Nicholson,
who's been with DDS for decades,
said he himself is concerned with how many drugs
are being used at Hogan.
And Dr. Levindusky said,
there is a public health emergency with respect to how many
antipsychotic medications are being
pumped into folks with these problems.
They don't, there isn't-
Someday, I hope someday the family hopes
that there is a least restrictive alternative
that will work. It does not exist.
And we will not be here when it does
because JRC and the families will use it right away.