Case: Judge Rotenberg Educational Center, Inc. v. Commissioner of the Department of Mental Retardation

The Judge Rotenberg Educational Center (JRC), formerly known as the Behavioral Research Institute, is a Massachusetts-based residential care facility for children and young adults with severe autism, mental impairments, and mental illnesses associated with behavioral problems. JRC is known for its use of aversive treatments, especially electric shock therapies, to disincentivize undesirable behaviors. As a result of its use of aversive treatments, JRC has been controversial and the subject of several lawsuits spanning decades. This case, along with Behavioral Research Institute v. Secretary of Administration, Petition of Kaufman, and Judge Rotenburg Center v. Food and Drug Administration (see related cases), are some of the cases brought surrounding various issues related to JRC's use of aversive therapies and funding.

In 1985, the Massachusetts Office for Children (OFC), which oversaw facilities like the Behavioral Research Institute (hereinafter referred to as the Judge Rotenberg Center), alleged that the facility's use of "aversive therapies" like spankings, muscle squeezes, pinching, and "restrained timeouts" violated state regulations. The OFC demanded that the facility show cause why it should not be shut down or otherwise sanctioned.

The Center responded by filing a class action in state court on behalf of itself, its students, and its students' parents. It claimed that the OFC had engaged in bad-faith regulatory actions that violated the students' due process rights as well as the state's Administrative Procedures Act.

In June 1986, the state superior court (Judge Ernest Rotenberg) granted a preliminary injunction barring the OFC from revoking the Center's license to provide services. The court held that prohibiting the Center from practicing "aversive therapies" would seriously inhibit its program and harm the students. The preliminary injunction was upheld on appeal.

A few months later, the two parties entered into a settlement agreement, which Judge Rotenberg approved in January 1987. The agreement allowed for "aversive procedures" at the Center only when authorized "as part of a court-ordered 'substituted judgment' treatment plan for an individual client." A court-appointed monitor oversaw all court-approved individualized aversive plans and reported regularly to the court. The monitor also had authority to arbitrate any disputes arising under the agreement.

The settlement agreement was only supposed to last for one year, but in July 1988, Judge Rotenberg extended it "until . . . further order."

In 1993, the Center brought a contempt action against the Massachusetts Department of Mental Retardation (which had replaced the OFC in supervising the Center) for alleged violation of the settlement agreement. The Center claimed that the Department acted in bad faith by refusing to grant the Center's request for recertification to use certain "aversive procedures." The Center also claimed that the Department had refused to arbitrate disputes as required by the decree and attempted to disrupt the Center's relationships with funding agencies and clients.

After a bench trial in 1995, the Court (Judge Elizabeth LaStaiti) found the Department of Mental Retardation in contempt, and appointed a receiver to manage the agency in all its dealings with the JRC. The receivership was in place from 1996 until 2006. During that time, the Department of Mental Retardation cooperated with the receiver in issuing licenses and certifications to the JRC. The Department also met with the receiver and Center to resolve any disputes.

In 2003, the receiver recommended returning regulatory authority over the Center to the state Office of Child Care Services, a sub-agency of the Department of Disability Services (DDS), which had succeeded the Department of Mental Retardation. In 2006, the receivership officially ended.

By 2006, the most common type of aversive intervention used by the Center was a graduate electronic decelerator, a device that administered an electric shock to the student's skin. The DDS classified this device as a Level III intervention.

In a report compiled by the New York State Education Department in 2006, the review team verbalized serious safety concerns about how the facility was supervised and operated. For example, the team found that JRC used Level III interventions on students for behaviors that “are not aggressive, health dangerous or destructive, such as nagging, swearing and failing to maintain a neat appearance.”

In 2011, the DDS banned all Level III interventions at facilities it oversaw. The agency allowed some exceptions for people who had existing court-approved treatment plans which included the use of such interventions.

But in 2012 the JRC received widespread media attention for engaging in such Level III interventions when New York magazine published an article featuring a former patient. Additionally, footage of that patient became available to the public as part of a lawsuit filed against the center by the patient’s mother.

The same year that the video surfaced, the Massachusetts government submitted a motion asking the court to vacate the 1987 consent decree. The DDS argued that the purpose of the decree had already been fulfilled and additionally introducing clinical and empirical evidence that was not available when the decree was entered. DDS argued that unlike its predecessor, the department has worked with the JRC to license and regulate its programs with transparency. However, in light of new evidence pertaining to the negative effects of using electrical stimulation devices, DDS argued that the consent decree impeded the department’s ability to regulate according to widely accepted standards of treatment.

The JRC responded to Massachusetts’s argument by asking the court to allow for discovery before making a decision. The JRC argued that a ruling on the government’s motion to vacate the consent decree would require the consideration of evidence to decide whether the purposes of the consent decree were fulfilled. While the government argued that the only purpose of the decree was to ensure transparent communication between the organizations, the JRC argued that the consent decree also had a second purpose: to protect the plaintiff’s right to effective education and treatment.

Although no further information regarding discovery is available, it is presumed that discovery ensued after these 2013 filings.

In the meantime, and outside of the court room, the U.S. Food and Drug Administration took a stance against the use of electrical stimulation devices as treatment in 2016 when it proposed a ban on the practice. At the time of the proposal, the JRC was the only facility still using such devices in the United States. In 2016, the FDA estimated that between 45 and 50 individuals were being exposed to the device at the JRC.

In 2018, a Bristol county probate and family court judge, Judge Katherine Fields, ruled that the government failed to demonstrate that the technique used by the JRC “does not conform to the accepted standard of care for treating individuals with intellectual and developmental disabilities.” The Massachusetts Attorney General’s Office decided to appeal Judge Fields’s decision to continue to allow the JRC to operate using electric shock devices.

Although information about that appeal is not available, the FDA has since acted on their 2016 proposal and banned the use of such techniques for responding to “aggressive behavior.” The FDA issued a ruling in early 2020 regarding electrical shock devices. While JRC issued a statement saying that the center will continue to fight the FDA decision, full compliance is required by 180 days after publication of the ruling on March 6, 2020.

Shortly after the FDA's ban went into effect, JRC and group of parents of patients filed a petition for review of the FDA's rule in the U.S. Court of Appeals for the D.C. Circuit. That case is fully described in Judge Rotenburg Center v. Food and Drug Administration. In July 2021, the D.C. Circuit found that the FDA's rule exceeded its statutory authorities and vacated the ban.