4. Further, this litigation is not concerned with the use of aversive therapy. The many issues surrounding the use of aversive therapy, both in the abstract and in the particular, are addressed through Substituted Judgment Proceedings in Individual Guardianship cases.
9. DR 7-102(A)(5) as appearing in 382 Mass 784 (1981) precludes counsel from knowingly making a false statement of law or fact to a tribunal. In addition, DR1-102(A)(4)(5) as appearing in 382 Mass. 769-770 (1981) provides that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit and misrepresentation, or in conduct that is prejudicial to administration of justice. See also In the Matter of McCarthy, 416 Mass. 423 (1993). In this case, the September 22, 1993 Report to the Court was filed by General Counsel Kim Murdock. Attorney Murdock knew of the two Casey Team Certification Reports of 1991 and 1993 in so far as they were addressed to her. As previously discussed, these reports were favorable to JRC and recommended certification. Despite the fact that Attorney Murdock had attached several exhibits to her report, the two Casey Certification Team Reports were deliberately withheld from the Court. This Court therefore concludes that when General Counsel Murdock presented this report to the Court she provided the Court with a document that she knew contained false statements and which omitted material facts which were necessary to give the Court a full and accurate picture of the matters that were allegedly being described.
22. This Court found most of DMR's witnesses not to be credible, and the Court felt the need on numerous occasions, after repeated instances of contradictory sworn testimony, to remind witnesses that they were under oath and had to tell the truth. [76]
Footnote [76] One notable exception was Attorney George Casey whose testimony this Court found to be credible.
23. The sophistry of the Department's counsel was also exemplified on the first day of the trial when in her opening statement, Assistant Attorney General Yogman indicated that the Department had no obligation under the Settlement Agreement to act in good faith. This Court is appalled that a senior member of the Office of the Attorney General, representing an agency which is supposed to serve the people of the Commonwealth could seriously contend that there was no obligation for her client to act in good faith. Attorney Yogman's remarks were representative of the manner in which the Department and its counsel conducted these proceedings as well as their lack of respect for the judicial process.
24. This Court specifically finds that counsel for DMR failed, in a number of different areas, to comply with the standards expected of attorneys practicing before this Court. This Court concludes that the conduct of counsel unnecessarily prolonged these proceedings.
25. For the reasons stated herein, copies of these Findings have been forwarded to the Board of Bar Overseers.
149. In July, 1993, two months before the RFP, Dr. Cerreto had requested and received a document which was a "Call to Action by Amnesty International" from a woman named Nancy Weiss. (See Exhibit 72). The "Call to Action" pertained to the use of aversive procedures with individuals with developmental disabilities. The attachments to the document were directed at JRC. They made serious and outrageous claims of mistreatment by JRC.
150. Dr. Cerreto knew when she received the "Call to Action", that the document equated the use of aversives with political torture. Dr. Cerreto also knew in July of 1993 that Richard Amado was listed as the first individual signatory to that document. The following day during her testimony, Dr. Cerreto totally contradicted her earlier testimony and denied being aware in July, 1993 that Dr. Amado was a signatory to the document.
151. A team in which the co-leader has signed a document, such as the "Call to Action", which equates the use of aversives to political torture, is incapable of doing a fair, impartial and unbiased review of a program that uses those very techniques. Dr. Cerreto's testimony that she was still convinced, despite knowing that Richard Amado had signed the "Call to Action", that the Rivendell review could be fair and impartial is simply not credible.[32]
Footnote [32] The Commissioner was also aware that Dr. Amado was a signatory to the Call to Action document.
267. The JRC program, which has an extremely vulnerable population, is the largest collection of difficult to treat clients in one program in the nation. The JRC students exhibit extremely self-injurious and aggressive behaviors which have generally been resistant to all forms of treatment prior to their admission to JRC. [67]
Footnote [67] The JRC students' self-injurious and aggressive behaviors include banging their heads to the point of causing brain injury, pulling hair out to the point of baldness, rubbing skin to the point of bone infection, breaking their own bones, rubbing off the side of their nose, biting off other people's noses and eye poking to the point of threatening dislodging of the retina and threatening blindness.
Due to the severity of behavior problems, the average JRC student had been rejected by five placements and expelled by nine prior to coming to JRC.[68]
Footnote [68] It is JRC's policy not to deny admission because a student has been difficult or impossible for others to deal with in prior placements. Therefore, JRC accepts many students no other provider would or could accept due to behaviors dangerous to themselves and others.
269. DMR caused grievous harm to the JRC students when its contemptuous and wrongful actions financially devastated the school and left JRC unable to provide the sophisticated reward and educational aspects of the program. It has been the JRC students that have suffered the most from DMR's conduct.
270. JRC has also been greatly harmed by DMR's conduct. DMR's publication of false and defamatory decisions and other correspondence has caused extensive damage to JRC's reputation as a reliable, effective and safe program for this nation's most afflicted individuals. The damage to JRC's reputation and good will with its funding and placement agencies has caused JRC to suffer a loss of revenues of such magnitude that its financial viability is in peril.
271. As previously discussed, DMR's assault on JRC's program began with the August 6, 1993, "Interim Certification" Order. (Exhibit 82). Critical staff such as psychologists, case managers, and the Director of Treatment had to put aside their usual duties of providing care and treatment to the students and spend three weeks responding to Commissioner Campbell's regulatory demands. The needless and wasteful condition that JRC respond in detail to Commissioner Campbell's August 6 Letter harmed the students and the program by consuming the staff's attention during that period of time.
272. After completing the response to the August 6 Letter, JRC researched the Rivendell group to determine the partiality and capability of this group. The JRC students and the JRC program were harmed by JRC having to divert staff resources to conduct Rivendell research rather than provide care and treatment to the students.
273. The eight-person Rivendell team occupied the JRC facilities for the week of March 20 through March 25, 1994, looking at files and observing staff and students.
274. The demands of the Rivendell team at JRC drew staff away from their normal duties in order to submit to interviews and respond to document demands made by the Rivendell team. The Rivendell team also withdrew students from classrooms and removed them from their normal daily activities in order to subject the students to interviews.
275. The Rivendell Group, as previously discussed, was not an independent and unbiased review team. The review conducted by Rivendell was unnecessary and harmed JRC and its students by creating a chaotic state at the school for a one week period, bringing treatment to a near standstill to the great harm and detriment of the JRC students and the program.
276. From August of 1993 up to the time of trial, half of Dr. Israel's time, as well as half of the time of the psychology staff, was devoted to dealing with the Department's regulatory activity.
277. Dr. Israel also spent substantial amounts of time meeting with, corresponding with, and talking to JRC's out-of-state funding and placement agencies in an effort to convince them DMR would not be able to close JRC, that students currently in the program should remain and referrals should continue to be made to the program.
278. Dr. Israel was even more preoccupied in May and June of 1994 when the Department, after months of refusing to do so, finally agreed to negotiate modifications to the conditions of the February 9th certification letter.
279. From June of 1994 through December of 1994, almost all of the attention of two of JRC's full-time psychologists, Drs. von Heyn and Worsham, who have a case load of sixteen students each, was diverted away from the students in order to respond to DMR's regulatory demands including the rewriting of fifty-two behavior modification treatment plans that had been previously approved by this Court. (Exhibit 152). During this period of time, the students were deprived of essential services provided by the JRC psychologists and case managers. Furthermore, there was no therapeutic benefit to the students from the changes required by DMR in the treatment plan.
280. Drs. von Heyn and Worsham were also required to respond, within thirty days to the fifty-six medical and forty-two psychiatric evaluations written by the psychiatrists and physicians retained by the Department who examined all of the JRC students.
281 This Court finds that it was unnecessary, intrusive and highly unethical for the Department to have conducted medical and psychiatric evaluations on all JRC students without an analysis or even a regard to whether any of these were clinically indicated.
282. The Department had conducted only two abuse investigations in the 22-year history of JRC prior to July, 1993. DMR conducted, initiated or referred more than fifty abuse investigations, between August 6, 1993 and the time of trial. [69]
-Footnote [69] In fact, the fifty-six medical evaluations (Exhibit 284) completed by DMR on all of the JRC students and JRC's responses thereto (Exhibit 287) establish unequivocally that the JRC students as a group are healthy, well-nourished, receiving excellent care with no signs of abuse or mistreatment.
283. It was also unnecessary and detrimental to the JRC students and the JRC program when DMR required the JRC staff to undergo training, including behavior modification training, conducted by the Department during the summer and fall of 1994.
284. The behavior modification training did not provide the JRC staff with anything new and useful beyond the job training already received at JRC. This training caused further harm to the students since it took place during the same period of time that the JRC staff was preoccupied with medical examinations, psychiatric examinations, rewriting treatment plans and responding to other regulatory demands of the Department. As a result, large groups of staff had to be removed from their normal program responsibilities to attend these sessions leaving the students with substantially less staff attention.
285. From late October through the end of December 1994, JRC was besieged with visits from DMR employees.[70] All of these DMR agents and employees were placing demands upon the JRC staff to respond to requests for information, interviews and other demands which left the JRC staff unable to attend to the JRC students depriving them of the treatment, education, rewards and attention they needed and deserved. From August of 1993 to December of 1994 there were over 400 visits to JRC by DMR agents and employees.
Footnote [70] Including: the DMR psychologist reviewing the six plans; DMR investigators; tandem service coordinators; the QUEST review team; the psychiatrists conduction psychiatric evaluations; and DMR attorneys reviewing records for substituted judgment actions.
290. From 1987 to August of 1993, JRC's enrollment grew from 43 to 66. After DMR began publishing its stream of false and defamatory communications and certification decisions, the growing trend in JRC's enrollment changed to a decreasing trend and JRC's enrollment decreased from 66 in August of 1993 to 43 at the time of trial. In August of 1993 the referrals of new clients to JRC from JRC's largest client, the State of New York, dropped dramatically, and an important placement agency in New York City on two occasions stopped all referrals to JRC. The Department's regulatory decisions and other correspondence sent to JRC's funding and placement agencies [73] harmed JRC's reputation and goodwill with its funding and placement agencies which resulted in a reduction of JRC's enrollment by thirty percent, reduction in referrals and a loss in revenue which has significantly lessened the quality of the JRC program, all to the great harm and detriment of JRC and the students.
Footnote [73] Two glaring examples include: the condition in the August 31st certification letter requiring JRC to have emergency plans in place for each student which damaged JRC's ability to retain and attract clients, and the December 15th certification letter which cast JRC in a false light as a program that fails to report deaths to its licensing agency and as not being trustworthy or competent to accept and care for disabled individuals.
291. DMR's contemptuous conduct has damaged the educational component of JRC's program. Due to the staff reductions, the teachers are managing large groups of students instead of providing more of the one-to-one teaching that occurred prior to August of 1993 and is necessary to teach new skills to JRC's disabled clientele. JRC has been forced to suspend its precision teaching systems because there is not enough staff to chart performance.
292. In addition, JRC does not have the fiscal resources to be able to maintain the reward program at its pre-August 1993 level. DMR's conduct has caused grievous harm to the JRC students by draining the funds from the school that were previously available and used to fund the JRC students' most desirable awards. For example, the students used to earn trips with preferred staff off campus when passing a two to three day contract for not engaging in behavior such as self-abuse. The JRC students and the program have been harmed because the program is now less capable of motivating the students through positive programming. The result is that current treatment of the students is not as effective.
293. There are currently not enough staff at JRC to bring the students into the community for education such as making transaction at banks, purchases at malls, and other community involvement. Even the students involvement in the Special Olympics has been significantly reduced.
294. The Department's contemptuous conduct has also placed the JRC students and staff at risk for more injuries due to low staffing. The dropping student enrollment has caused the more qualified and marketable staff to leave JRC, out of fear it will be closing and that they will be left without a job. The result is a less skillful and quality staff available to respond to a crisis (such as student tantrums and aggressive outbursts) and maintain the care and safety of other students during a crisis.
295. The Department's contemptuous conduct has caused a deterioration in the quality of life for the JRC students. The students do not have the opportunity to travel home to visit their families as they did prior to August of 1993, because there is not sufficient staff available to bring the students home for visits. The students are spending less time at the JRC group home residence and more time at the school building in Providence, Rhode Island, because it is safer, due to low staffing levels, for the students to be in one building closer to all of the staff than to disperse staff and students amount the group homes.
296. The actions of DMR to discredit Dr. Daignault's professional competency and credibility have affected his ability to perform his duties under the Settlement Agreement.
297. As a result, students of JRC were deprived of the prior existing benefit of a collegial and productive relationship between the Court Monitor and DMR, which had in the past resulted in comprehensive treatment information being brought to the attention of the Court, and resolution of licensing issues in a manner which served the best interests of the students.
298. DMR's refusal to allow JRC to continue the Specialized Food Program has made JRC's program less effective in treating behavior disorders. This decision has critically impacted two students who are currently suffering a dramatic increase in their health-dangerous behaviors. J.C. is now engaging in more self-abuse and receiving more applications of contingent electric shock, where before the Specialized Food Program had successfully suppressed those behaviors through the student's love of food. DMR is directly responsible for the recent regression of this student and the increased shocks she is receiving.