12-26-2004, 10:50 PM
THE JUDGE ROTENBERG EDUCATIONAL CENTER, INC., & others n1 vs. COMMISSIONER OF THE DEPARTMENT OF MENTAL RETARDATION (NO.1). n2
n1 Matthew L. Israel, executive director of The Judge Rotenberg Educational Center, Inc. (JRC); Leo Soucy, individually and as parent and next friend of Brendon Soucy; and Peter Biscardi, individually and as parent and next friend of P.J. Biscardi, both as representatives of the class of all patients at the Behavior Research Institute, Inc., their parents, and guardians. At the time of the settlement agreement, JRC was known as the Behavior Research Institute, Inc. We shall refer to the plaintiff as JRC.
n2 The director of the office for children, the predecessor in interest of the Department of Mental Retardation (department) was originally named as the defendant in this case.
THE JUDGE ROTENBERG EDUCATIONAL CENTER, INC. n1 vs. COMMISSIONER OF THE DEPARTMENT OF MENTAL RETARDATION (NO. 2).
n1 Matthew L. Israel, executive director of The Judge Rotenberg Educational Center, Inc. (JRC); Leo Soucy, individually, and as parent and next friend of Brendon Soucy; and Peter Biscardi, individually, and as parent and next friend of P.J. Biscardi, both as representatives of the class of all patients at the Behavior Research Institute, Inc., their parents, and guardians.
SJC-07101
SUPREME JUDICIAL COURT OF MASSACHUSETTS
424 Mass. 430; 677 N.E.2d 127; 1997 Mass. LEXIS 69
November 5, 1996, Argued
March 13, 1997, Decided
LYNCH, J. The commissioner of the Department of Mental Retardation (department) appeals from a final judgment of the Bristol County Probate and Family Court finding the department in contempt of a court-ordered settlement agreement entered into by the Judge Rotenberg Educational Center, Inc. (JRC), the patients at JRC, their parents and guardians, and the office for children (OFC). n3 After trial, the judge concluded that the department had violated the settlement agreement; enjoined the department from failing to comply with the terms of the agreement; appointed a receiver to administer, manage, and operate the department in all of its relationships with JRC; and awarded attorney's fees to JRC, counsel for the parents, and counsel for the class of patients. n4 We [**132] granted [***3] the department's application for direct appellate review.
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n3 The settlement agreement dated December 12, 1986, provided in part: "On or before July 1, 1987, the licensing responsibility for [JRC] shall be transferred from [OFC] to [the Department of Mental Health] in accordance with an interagency agreement . . . ." On July 1, 1987, however, the department assumed the legal responsibility for licensing JRC, St. 1986, c. 599, and on October 24, 1988, moved that the settlement agreement be modified to clarify that "it has also assumed [the Department of Mental Health's] obligations under the Settlement Agreement." The judge treated the department's motion as a motion to intervene under Mass. R. Civ. P. 24 (b) (2), 365 Mass. 769 (1974), and "welcomed it as a party under the settlement agreement."
n4 Prior to trial, the contempt complaint was amended several times. After the judge allowed JRC's motion to file a third amended complaint, she issued a preliminary injunction. The department appealed from this injunction to a full panel of the Appeals Court pursuant to G. L. c. 231, § 118, par. second. This court thereafter granted direct appellate review, and that appeal is the subject of another case, also decided today. Judge Rotenberg Educ. Ctr., Inc. (No. 2). v. Commissioner of the Dep't of Mental Retardation, post, 424 Mass. 471, 677 N.E.2d 153 (1997). In addition, the department petitioned a single justice of the Appeals Court pursuant to G. L. c. 231, § 118, par. first, for interlocutory relief from or modification of the preliminary injunction pending appeal. The single justice modified the injunction and later, in response to a request for clarification, enjoined JRC from using certain challenged "Level III" aversive treatments. The single justice also heard an appeal from the Probate Court judge's order pursuant to a "global motion" filed by guardianship counsel on behalf of 52 JRC patients in each of their individual guardianship cases requesting the Probate Court judge to issue orders requiring JRC to cease using certain Level III aversive procedures. The single justice of the Appeals Court allowed the patients' petition and incorporated by reference the previous order that had been entered and clarified, as the orders dealt with the same aversive treatments. A single justice of this court denied JRC's request for relief from the order of the single justice of the Appeals Court. JRC then appealed to the full panel of the Appeals Court, and we granted the department's application for direct appellate review. That appeal is also the subject of another case decided today. Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep't of Mental Retardation (No. 3), post (1997).
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[*433] This contempt action has its origin in a lawsuit brought in 1986 by JRC, the class of all patients at JRC, their parents and guardians, against OFC alleging that OFC had engaged in bad faith regulatory and licensing activities and violated the civil rights of the patients. On June 4, 1986, the judge entered a preliminary injunction enjoining OFC from enforcing its orders and concluded in extensive findings that the director of OFC had engaged in bad faith regulation of JRC, and that her termination of JRC's treatment procedures was without medical support, leaving the program an "empty shell for those [patients] who require aversives as part of their treatment." The judge further found that the director of OFC attempted to hide the lack of clinical support for her decision by altering her own agency's laudatory report of JRC, and by sending an evaluation team, biased against the use of aversive therapy, to conduct an "objective" evaluation of the JRC program. The judge therefore found that the director's orders constituted arbitrary treatment decisions that "played 'Russian Roulette' with the lives and safety of the [patients] at [JRC]."
The preliminary injunction was upheld [***5] by a single justice of the Appeals Court, who ruled that there was ample evidence to support both the judge's entry of injunctive relief and his conclusion that the director of OFC acted in "bad faith in [her] handling of the status of [JRC's] license and its treatment programs." Subsequently, the plaintiff class, JRC, and OFC entered into the settlement agreement which forms the basis of this appeal. n5 The judge approved the settlement agreement on January 7, 1987, and incorporated it as an order [*434] of the court. n6 In 1993, JRC brought this contempt action, alleging that the department had repeatedly violated the settlement agreement.
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n5 Part A of the settlement agreement provides that "aversive procedures are permitted for use at [JRC] only when authorized as part of a court-ordered 'substituted judgment' treatment plan for an individual client, when such client is either a minor or is not able to provide informed consent thereto."
Part B of the settlement agreement provides: "On each occasion when the Court issues a substituted judgment treatment plan, the Court shall also appoint a monitor who will report to the Court as to the effectiveness of the treatment plan, adherence to order by [JRC], and any proposed modifications to the treatment plan." Part B also provides that the judge would appoint a suitable person "who shall undertake general monitoring of [JRC]'s treatment and educational program." The court monitor was also to be responsible for "overseeing [JRC]'s compliance with all applicable state regulations, except to the extent that those regulations involve treatment procedures authorized by the Court in accordance with [part] A." Finally, part B provides that the court monitor "shall arbitrate any disputes between the parties, and in the event that any party disagrees with any decision or recommendation of the [court monitor], the matter shall be submitted to the Court for resolution."
Part C of the settlement agreement provides in part that "intake at [JRC] for new clients shall be reopened and shall not be impermissibly obstructed during the pendency of this agreement."
Finally, part L of the settlement agreement provides that "each party shall discharge its obligations under the terms of this agreement, in good faith." [***6]
n6 Originally the settlement agreement provided that a review would occur every six months with the settlement agreement automatically terminating at the second review unless the judge ordered otherwise. After the second six-month review, the judge extended the agreement until further order of the court.
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The following facts are derived from the judge's findings, which she made after a thirteen-day trial. n7
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n7 The judge made 304 findings of fact, but the last two were numbered 303. The department disputes all of the 304 findings of fact. We therefore review those facts that are necessary to support a finding of contempt and the imposition of certain remedies.
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In 1991, JRC applied to be recertified in the use of "Level III" aversive behavior modification [**133] techniques. n8 The department [*435] assigned a team to evaluate the application and to make a site visit to JRC. The team visited JRC on December 9 and 10, 1991, reviewed voluminous [***7] materials, and met with a number of employees at JRC. An assistant general counsel of the department who was a member of the team prepared a report dated December 21, 1991. The report recommended that JRC be recertified to employ aversive procedures, subject to five conditions which were characterized as "minor." The report included compliments about JRC which "concluded that the programs at JRC were in conformity with [the department] regulations and the directives of the Bristol County Probate Court."
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n8 At the time of the trial the applicable regulations were codified in 104 Code Mass. Regs. § 20.15. The regulations, as of September, 1995, appear at 115 Code Mass. Regs. § 5.14.
HN1Level III aversive therapies are defined by the department regulations as "any Intervention which involves the contingent application of physical contact aversive stimuli such as spanking, slapping, or hitting;" "Time Out wherein an individual is placed in a room alone for a period of time exceeding 15 minutes;" "any Intervention not listed . . . as a Level I or Level II Intervention which is highly intrusive and/or highly restrictive of freedom of movement;" or "any Intervention which alone, in combination with other Interventions, or as a result of multiple applications of the same Intervention poses a significant risk of physical or psychological harm to the individual." 115 Code Mass. Regs. § 5.14 (3) (d) (1995).
HN2Under the department's regulations, "No Behavior Modification plans employing Level III Interventions may be implemented except in a program or a distinct part of a program that . . . is . . . specially certified by the Department as having authority to administer such treatment." 115 Code Mass. Regs. § 5.14 (4) (f) (1995).
Before a program can be certified, a comprehensive evaluation is made of a program. As part of the evaluation, HN3a program must provide "a comprehensive statement of the program's policies and procedures for the development and implementation of plans employing Level III Interventions, including a description of the program's actual use, or proposed use, of such procedures, and of the program's policies and practices regarding the training and supervision of all staff involved in the use of such procedures." 115 Code Mass. Regs. § 5.14 (4) (f) (3). The department then reviews the program, and has access to written plans designed for patients that are reviewed to ensure that they comport with applicable regulations, the physical facility, and the professional credentials of the program's employees. In addition, the department also has the opportunity to observe the treatment employed by the program. 115 Code Mass. Regs. § 5.14 (4) (f) (6). In short, a decision to certify a program is an acknowledgment that the program is complying with all applicable regulations. 115 Code Mass. Regs. § 5.14 (4) (f) (7).
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Almost six months after the report was submitted the department's director of quality assurance notified the executive director of JRC, that the department had "accepted the recommendations of the team." The department, however, did not grant certification to JRC at this time even though that was the recommendation of the review team.
One month after JRC received the letter stating that the recommendations of the review team had been accepted, the department's director of quality assurance sent another letter [*436] to JRC's executive director stating that two new behavioral programs, the "Specialized Food Program" n9 and the "GED Program," n10 had been brought to her attention and needed to be reviewed as part of the recertification process. A second review team, which also included the department's assistant general counsel, was sent to JRC for a site visit and concluded that JRC had complied with all five prior conditions of certification in the December 21, 1991, report and that there were no adverse health effects from either the "GED-4" n11 or the Specialized Food Program. The judge found that "it was clear that the team found JRC to be in full compliance with the regulations." Indeed, [***9] [**134] the team reported that "there is no reason to change the previous recommendation that JRC retain its certification to employ Level III interventions in behavior modification programs."
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n9 Patients in this program are given a daily caloric requirement based on standardized height and weight charts. They do not receive any food except that earned by passing "behavior contracts" which require that the patient not exhibit some or all of his or her target behavior for a specified period of time. Patients who earn less than their daily caloric requirement are provided "makeup food" in the evening if they receive less than twenty per cent of their caloric requirement during the day. Under the program, a patient could remain on the reduced calorie diet until his or her weight was 87.5% of his or her mid-weight of the desired range.
n10 The GED (graduated electronic decelerator) program is a procedure which involves an electrical stimulus which is utilized when a client engages in maladaptive behavior.
n11 The GED-4 is a stronger version of the GED.
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Despite the recommendations of the review teams, the department did not certify JRC. No one in the department spoke to the assistant general counsel about the 1993 report, and, to his knowledge, no one in the department spoke to any members of the team concerning the 1993 report. The commissioner, however, asserted that the 1993 certification team report was not complete because it had not been signed by one member of the review team who had since left the department. The judge also found that neither the 1991 report nor the 1993 report was ever read by the commissioner or the assistant commissioner for quality assurance. Nevertheless, some of the information found in the certification team reports was used in communications to parents, funding agencies, and the court. Despite using this information, however, the commissioner "never revealed the existence of or sent a copy [*437] of the 1991 or 1993 certification reports to the Court Monitor, JRC, the funding agencies of JRC, the parents of JRC [patients], or the Court." Rather, the department, led by the commissioner, began a regulatory barrage of JRC that was to last two years. n12
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n12 The judge also found that the commissioner's actions toward JRC were motivated at least in part because of his fear that the agency might be portrayed in a negative light by the CBS News television program "Eye-to-Eye." CBS News had contacted the department in the spring of 1993 and requested certain information relative to JRC. The commissioner spoke to the producer of the show and was concerned that the show might depict the department as not doing its job in regulating JRC. While the commissioner testified that he never did anything in anticipation of that program, documents revealed that the commissioner had taken certain actions with the television program in mind.
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On August 6, 1993, the department mailed the first of several letters to JRC. While the letter purported to grant "interim certification" to JRC, the judge found that "it was in reality the first volley in a series of actions designed to put JRC out of business." The letter, which followed the favorable report of the 1993 review team by just a few weeks, stated that the department had found "continued and repeated noncompliance [by JRC] with the requirements of [department] regulations."
Following the August 6, letter, JRC requested a meeting with the department and the court monitor pursuant to a provision in the settlement agreement. Between 1987 and at least as late as March, 1993, JRC and the department utilized a court monitor appointed pursuant to the settlement agreement to settle disputes. However, following the August 6, letter, the department declined to meet with JRC if the court monitor was to participate. After JRC's attempt at mediation failed, JRC then responded to the August 6, letter on August 27, 1993, by delivering a written point-by-point refutation of the allegations contained in the letter of August 6, accompanied by three cubic feet of documentation. [***12]
On August 31, 1993, the department sent JRC another letter stating that the department had learned from a source "other than JRC" that there were problems with misfirings of the GED. JRC, the commissioner wrote, was "in violation of (the department) regulations" but the department would "give [JRC] further opportunity to provide information." The letter set forth a number of conditions that JRC was required to [*438] meet to receive interim certification. One of the conditions, condition 1, restricted the use of certain procedures at JRC. The judge found that this "directly contradicted orders of this Court" and that the commissioner "administratively overruled outstanding orders of this Court" in violation of the settlement agreement.
Another condition of the letter, condition 10, required JRC to notify all funding sources that there must be in place within sixty days an emergency plan to address the funding and logistics of any unexpected medical, personal, or programmatic situations which JRC deemed were beyond its capacity to address. The condition went on to state that the plans "must provide evidence of the funder's ability to immediately provide all [**135] needed services for such clients [***13] so as to ensure that the client is not substantially endangered." The commissioner testified that this condition was based on prior situations where JRC had unexpectedly discharged patients. The commissioner, however, could only identify one such discharge that had occurred in 1991, and he acknowledged that other providers had unexpectedly terminated patients and that no similar condition had ever been imposed on a provider. The judge found that this condition was purposely designed to obstruct JRC's intake of new patients by alarming funding agencies and was in fact part of a plan to place JRC into receivership or to put JRC out of business.
On September 20, 1993, JRC, the department, and the court monitor reached an agreement whereby JRC would not have to comply with condition 10. Despite this agreement, however, the department mailed copies of the August 6, and August 31, 1993, letters to all of JRC's funding agencies. The letter contained condition 10, despite the agreement modifying condition 10 that had been reached between JRC and the department. Moreover, the judge found that "it was not customary practice to keep funding agencies advised of the certification process. [The] [***14] commissioner could not explain why it was important to send these letters out [and] could not offer an explanation as to why funding agencies were not advised in this mailing that condition 10 had been modified." The judge concluded that the mailings were made in bad faith with the intent to interfere with JRC's relationships with its funding agencies. In addition, on September 22, 1993, the department filed an unsolicited "Report to the Court" [*439] concerning JRC's "status." Although the document contained numerous reports concerning JRC, including the August 6, and August 31, letters, it did not contain the two favorable certification reports. The judge also found that the report contained "blatant false statements and material omissions" and that the department failed to include the favorable certification recommendation because "they would have contradicted (the department's) report to the court."
On September 24, 1993, the department sent JRC another certification letter addressed to JRC's executive director indicating that certification would be granted conditionally until December 15, 1993. The letter, which was also sent to funding agencies, stated that there were fourteen abuse [***15] investigations arising from complaints by former JRC staff and patients. In addition, the letter stated that the allegations were "quite serious on their face, and include claims that [JRC'S executive director] personally [was] involved in, or responsible for, abuse against specific [JRC] clients." The commissioner testified, however, that revealing information about abuse charges prior to having them substantiated was a departure from the department's acknowledged practice. In addition, the commissioner conceded that, although the allegations were investigated and not substantiated, the department never sent out a letter so advising the funding agencies.
On December 15, 1993, the commissioner sent JRC yet another letter which stated that "your failure to report a death in 1991 made it impossible for me to fulfil my responsibilities . . . . [JRC] has in the past failed to report deaths and serious injuries as required by law." Again, a copy of this letter was sent to funding agencies. The commissioner admitted in his testimony that his reference to "deaths" was an error and reasoned that it was a typographical error. The judge concluded that the error was intentional, finding [***16] that no patient had died at JRC in 1991, and the only death remotely involved was the death of a patient in 1990 which was reported by JRC and that, contrary to the commissioner's testimony, the document did contain sufficient information for an investigation.
In addition to sending out numerous letters to JRC regarding the certification process, from at least September 7, 1993, until the spring of 1994, the commissioner instituted "Tuesday Morning Meetings." These meetings were attended at times [*440] by a "large group" of individuals and at other times by a "small group" of individuals. The commissioner and the assistant commissioner for quality assurance testified that the meetings were held strictly to deal with issues of [**136] certification. These meetings did not, in fact, deal strictly with certification. Rather, the judge concluded that a plan was developed at the September 7, 1993, meeting to disrupt the operations of JRC by every conceivable means, including interfering with the financial operations of JRC and disrupting JRC's relationships with funding agencies and parents.
One of the work plans from the Tuesday morning meetings stated that December 15, 1993, was "D-Day" for JRC. [***17] The December 15 date coincided with the date JRC's temporary certification was expected to expire and fell just a few days after the department expected to receive a report from an "independent" consulting firm (Rivendell review team), which had been selected by the department to conduct an independent review of JRC. Such a review was suggested by the assistant commissioner for quality assurance to the commissioner because she alleged that prior evaluations, including the certification reports of 1991 and 1993, were insufficient. The judge, however, found that the Rivendell review team was anything but "independent" because the head of the Rivendell review team had previously signed a document entitled "Call to Action by Amnesty International," which equated the use of aversives with political torture. The judge found that attachments to the "Call to Action" were directed at JRC and made "serious and outrageous claims of mistreatment" by JRC. In addition, the judge concluded that the assistant commissioner for quality assurance's allegation that reports of prior review teams were not sufficient was "not truthful [because] she acknowledged that she had not even seen the 1993 certification [***18] report until sometime in April 1995." Moreover, the judge concluded that the "request for a proposal" (RFP) process whereby the assistant commissioner for quality assurance solicited bids for the independent program review was inconsistent with the Commonwealth's policy because the RFP contained only a ten-day turn-around time and was only sent to a select group of recipients.
In January of 1994, the department arranged a meeting with a New York agency that funded patients at JRC. JRC learned of the meeting and requested that a guardian ad litem [*441] be allowed to attend. After agreeing to this request the department canceled the meeting. JRC then requested in writing that it be notified of any future meetings or telephone conferences with the New York agency. Nevertheless, department officials held a telephone conference with representatives of the New York agency without notifying JRC. On February 28, 1994, the New York agency wrote to the parents of all New York patients at JRC and told them that alternative placements for their children would be offered in New York. The judge concluded that "the meeting with New York officials was a continuation of the commissioner's campaign of interfering [***19] with JRC's relationship[s] with its funding agencies."
On February 9, 1994, the department sent JRC a letter requiring JRC to comply with twelve more conditions by May 8, 1994. If JRC fully complied, the department agreed to certify JRC for two years. One of the conditions was that JRC rewrite all of its behavior modification treatment plans (approximately fifty-five) and allow two new psychiatrists and physicians to conduct independent psychiatric and medical evaluations on every JRC patient (approximately sixty patients) within eighty days. The commissioner did not read the reports of these psychiatrists, and not one of the evaluations recommended the discontinuation of Level III treatment procedures. Moreover, the judge found that the commissioner could not identify any credible reason for the imposition of the condition regarding medical evaluations.
In the spring of 1994, the department and JRC began six weeks of intensive negotiations regarding the conditions of certification contained in the February 9, 1994, letter. An agreement was reached on July 5, 1994, in which the department extended JRC's certification to December 31, 1994. The department also agreed that the rewritten [***20] behavior modification plans would be submitted on a weekly basis. The assistant commissioner for quality assurance and a psychologist at JRC developed a prototype treatment plan based on one of JRC's most difficult patients. This treatment plan, which was approved by [**137] the assistant commissioner for quality assurance, became the model by which every other treatment plan was to be written. The department, however, later alleged that the behavior modification plans submitted by a psychologist at JRC did not comply with department regulations.
[*442] The allegation that the plans did not comply with department regulations was made in a letter dated January 20, 1995. This letter also purported to extend JRC's certification, provided that six new conditions were satisfied, one of which required JRC to discontinue Level III interventions for six individuals, including an individual in a related case, Guardianship of Brandon, post (1997), a patient at JRC who had been the subject of a recent five-day treatment plan review by a Probate Court judge. The January 20, letter also required that JRC discontinue the Specialized Food Program. JRC requested mediation of the dispute but there [***21] was no response until April 7, 1995, when a department official stated that the department remained "open to addressing . . . any issue JRC may have regarding the certification process." That response, however, was meaningless because the department decertified JRC on March 23, 1995, effective July 1, 1995. On March 24, 1995, a preliminary injunction was entered enjoining the department from decertifying JRC. n13
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n13 See note 4, supra.
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The judge interpreted the settlement agreement to require that "decisions on treatment were reserved for the Court." She also found that part B of the settlement agreement appointed a court monitor who was to undertake a general monitoring of JRC's programs and to arbitrate any disputes between the parties. Finally, the judge noted that part L of the settlement agreement required the parties to discharge their obligations under the terms of the agreement in good faith. The judge concluded that, on the basis of these facts, "the provisions of the court-ordered settlement agreement [***22] are clear and unequivocal commands which are binding on the defendant. . . . The defendant is in contempt having clearly and undoubtedly disobeyed the Order of this Court." n14
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n14 The department argues that the judge's "entire application of the law of contempt to the facts of this case" consisted of these two sentences and that therefore the judge did not make clear what conduct by the department constituted "clear and undoubted disobedience" of the settlement agreement. This argument is without merit. The judge made extensive factual findings, many of which referenced the provisions in the settlement agreement that had been violated by such actions. In addition, in the order denying the department's motion to stay the judgment pending an appeal, the judge further specified which of her factual findings constituted violations of the settlement agreement.
We note also that the judge denied the department's counterclaim alleging that JRC had violated the settlement agreement. The department does not appeal from the decision denying the counterclaim.
n1 Matthew L. Israel, executive director of The Judge Rotenberg Educational Center, Inc. (JRC); Leo Soucy, individually and as parent and next friend of Brendon Soucy; and Peter Biscardi, individually and as parent and next friend of P.J. Biscardi, both as representatives of the class of all patients at the Behavior Research Institute, Inc., their parents, and guardians. At the time of the settlement agreement, JRC was known as the Behavior Research Institute, Inc. We shall refer to the plaintiff as JRC.
n2 The director of the office for children, the predecessor in interest of the Department of Mental Retardation (department) was originally named as the defendant in this case.
THE JUDGE ROTENBERG EDUCATIONAL CENTER, INC. n1 vs. COMMISSIONER OF THE DEPARTMENT OF MENTAL RETARDATION (NO. 2).
n1 Matthew L. Israel, executive director of The Judge Rotenberg Educational Center, Inc. (JRC); Leo Soucy, individually, and as parent and next friend of Brendon Soucy; and Peter Biscardi, individually, and as parent and next friend of P.J. Biscardi, both as representatives of the class of all patients at the Behavior Research Institute, Inc., their parents, and guardians.
SJC-07101
SUPREME JUDICIAL COURT OF MASSACHUSETTS
424 Mass. 430; 677 N.E.2d 127; 1997 Mass. LEXIS 69
November 5, 1996, Argued
March 13, 1997, Decided
LYNCH, J. The commissioner of the Department of Mental Retardation (department) appeals from a final judgment of the Bristol County Probate and Family Court finding the department in contempt of a court-ordered settlement agreement entered into by the Judge Rotenberg Educational Center, Inc. (JRC), the patients at JRC, their parents and guardians, and the office for children (OFC). n3 After trial, the judge concluded that the department had violated the settlement agreement; enjoined the department from failing to comply with the terms of the agreement; appointed a receiver to administer, manage, and operate the department in all of its relationships with JRC; and awarded attorney's fees to JRC, counsel for the parents, and counsel for the class of patients. n4 We [**132] granted [***3] the department's application for direct appellate review.
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n3 The settlement agreement dated December 12, 1986, provided in part: "On or before July 1, 1987, the licensing responsibility for [JRC] shall be transferred from [OFC] to [the Department of Mental Health] in accordance with an interagency agreement . . . ." On July 1, 1987, however, the department assumed the legal responsibility for licensing JRC, St. 1986, c. 599, and on October 24, 1988, moved that the settlement agreement be modified to clarify that "it has also assumed [the Department of Mental Health's] obligations under the Settlement Agreement." The judge treated the department's motion as a motion to intervene under Mass. R. Civ. P. 24 (b) (2), 365 Mass. 769 (1974), and "welcomed it as a party under the settlement agreement."
n4 Prior to trial, the contempt complaint was amended several times. After the judge allowed JRC's motion to file a third amended complaint, she issued a preliminary injunction. The department appealed from this injunction to a full panel of the Appeals Court pursuant to G. L. c. 231, § 118, par. second. This court thereafter granted direct appellate review, and that appeal is the subject of another case, also decided today. Judge Rotenberg Educ. Ctr., Inc. (No. 2). v. Commissioner of the Dep't of Mental Retardation, post, 424 Mass. 471, 677 N.E.2d 153 (1997). In addition, the department petitioned a single justice of the Appeals Court pursuant to G. L. c. 231, § 118, par. first, for interlocutory relief from or modification of the preliminary injunction pending appeal. The single justice modified the injunction and later, in response to a request for clarification, enjoined JRC from using certain challenged "Level III" aversive treatments. The single justice also heard an appeal from the Probate Court judge's order pursuant to a "global motion" filed by guardianship counsel on behalf of 52 JRC patients in each of their individual guardianship cases requesting the Probate Court judge to issue orders requiring JRC to cease using certain Level III aversive procedures. The single justice of the Appeals Court allowed the patients' petition and incorporated by reference the previous order that had been entered and clarified, as the orders dealt with the same aversive treatments. A single justice of this court denied JRC's request for relief from the order of the single justice of the Appeals Court. JRC then appealed to the full panel of the Appeals Court, and we granted the department's application for direct appellate review. That appeal is also the subject of another case decided today. Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep't of Mental Retardation (No. 3), post (1997).
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[*433] This contempt action has its origin in a lawsuit brought in 1986 by JRC, the class of all patients at JRC, their parents and guardians, against OFC alleging that OFC had engaged in bad faith regulatory and licensing activities and violated the civil rights of the patients. On June 4, 1986, the judge entered a preliminary injunction enjoining OFC from enforcing its orders and concluded in extensive findings that the director of OFC had engaged in bad faith regulation of JRC, and that her termination of JRC's treatment procedures was without medical support, leaving the program an "empty shell for those [patients] who require aversives as part of their treatment." The judge further found that the director of OFC attempted to hide the lack of clinical support for her decision by altering her own agency's laudatory report of JRC, and by sending an evaluation team, biased against the use of aversive therapy, to conduct an "objective" evaluation of the JRC program. The judge therefore found that the director's orders constituted arbitrary treatment decisions that "played 'Russian Roulette' with the lives and safety of the [patients] at [JRC]."
The preliminary injunction was upheld [***5] by a single justice of the Appeals Court, who ruled that there was ample evidence to support both the judge's entry of injunctive relief and his conclusion that the director of OFC acted in "bad faith in [her] handling of the status of [JRC's] license and its treatment programs." Subsequently, the plaintiff class, JRC, and OFC entered into the settlement agreement which forms the basis of this appeal. n5 The judge approved the settlement agreement on January 7, 1987, and incorporated it as an order [*434] of the court. n6 In 1993, JRC brought this contempt action, alleging that the department had repeatedly violated the settlement agreement.
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n5 Part A of the settlement agreement provides that "aversive procedures are permitted for use at [JRC] only when authorized as part of a court-ordered 'substituted judgment' treatment plan for an individual client, when such client is either a minor or is not able to provide informed consent thereto."
Part B of the settlement agreement provides: "On each occasion when the Court issues a substituted judgment treatment plan, the Court shall also appoint a monitor who will report to the Court as to the effectiveness of the treatment plan, adherence to order by [JRC], and any proposed modifications to the treatment plan." Part B also provides that the judge would appoint a suitable person "who shall undertake general monitoring of [JRC]'s treatment and educational program." The court monitor was also to be responsible for "overseeing [JRC]'s compliance with all applicable state regulations, except to the extent that those regulations involve treatment procedures authorized by the Court in accordance with [part] A." Finally, part B provides that the court monitor "shall arbitrate any disputes between the parties, and in the event that any party disagrees with any decision or recommendation of the [court monitor], the matter shall be submitted to the Court for resolution."
Part C of the settlement agreement provides in part that "intake at [JRC] for new clients shall be reopened and shall not be impermissibly obstructed during the pendency of this agreement."
Finally, part L of the settlement agreement provides that "each party shall discharge its obligations under the terms of this agreement, in good faith." [***6]
n6 Originally the settlement agreement provided that a review would occur every six months with the settlement agreement automatically terminating at the second review unless the judge ordered otherwise. After the second six-month review, the judge extended the agreement until further order of the court.
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The following facts are derived from the judge's findings, which she made after a thirteen-day trial. n7
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n7 The judge made 304 findings of fact, but the last two were numbered 303. The department disputes all of the 304 findings of fact. We therefore review those facts that are necessary to support a finding of contempt and the imposition of certain remedies.
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In 1991, JRC applied to be recertified in the use of "Level III" aversive behavior modification [**133] techniques. n8 The department [*435] assigned a team to evaluate the application and to make a site visit to JRC. The team visited JRC on December 9 and 10, 1991, reviewed voluminous [***7] materials, and met with a number of employees at JRC. An assistant general counsel of the department who was a member of the team prepared a report dated December 21, 1991. The report recommended that JRC be recertified to employ aversive procedures, subject to five conditions which were characterized as "minor." The report included compliments about JRC which "concluded that the programs at JRC were in conformity with [the department] regulations and the directives of the Bristol County Probate Court."
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n8 At the time of the trial the applicable regulations were codified in 104 Code Mass. Regs. § 20.15. The regulations, as of September, 1995, appear at 115 Code Mass. Regs. § 5.14.
HN1Level III aversive therapies are defined by the department regulations as "any Intervention which involves the contingent application of physical contact aversive stimuli such as spanking, slapping, or hitting;" "Time Out wherein an individual is placed in a room alone for a period of time exceeding 15 minutes;" "any Intervention not listed . . . as a Level I or Level II Intervention which is highly intrusive and/or highly restrictive of freedom of movement;" or "any Intervention which alone, in combination with other Interventions, or as a result of multiple applications of the same Intervention poses a significant risk of physical or psychological harm to the individual." 115 Code Mass. Regs. § 5.14 (3) (d) (1995).
HN2Under the department's regulations, "No Behavior Modification plans employing Level III Interventions may be implemented except in a program or a distinct part of a program that . . . is . . . specially certified by the Department as having authority to administer such treatment." 115 Code Mass. Regs. § 5.14 (4) (f) (1995).
Before a program can be certified, a comprehensive evaluation is made of a program. As part of the evaluation, HN3a program must provide "a comprehensive statement of the program's policies and procedures for the development and implementation of plans employing Level III Interventions, including a description of the program's actual use, or proposed use, of such procedures, and of the program's policies and practices regarding the training and supervision of all staff involved in the use of such procedures." 115 Code Mass. Regs. § 5.14 (4) (f) (3). The department then reviews the program, and has access to written plans designed for patients that are reviewed to ensure that they comport with applicable regulations, the physical facility, and the professional credentials of the program's employees. In addition, the department also has the opportunity to observe the treatment employed by the program. 115 Code Mass. Regs. § 5.14 (4) (f) (6). In short, a decision to certify a program is an acknowledgment that the program is complying with all applicable regulations. 115 Code Mass. Regs. § 5.14 (4) (f) (7).
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Almost six months after the report was submitted the department's director of quality assurance notified the executive director of JRC, that the department had "accepted the recommendations of the team." The department, however, did not grant certification to JRC at this time even though that was the recommendation of the review team.
One month after JRC received the letter stating that the recommendations of the review team had been accepted, the department's director of quality assurance sent another letter [*436] to JRC's executive director stating that two new behavioral programs, the "Specialized Food Program" n9 and the "GED Program," n10 had been brought to her attention and needed to be reviewed as part of the recertification process. A second review team, which also included the department's assistant general counsel, was sent to JRC for a site visit and concluded that JRC had complied with all five prior conditions of certification in the December 21, 1991, report and that there were no adverse health effects from either the "GED-4" n11 or the Specialized Food Program. The judge found that "it was clear that the team found JRC to be in full compliance with the regulations." Indeed, [***9] [**134] the team reported that "there is no reason to change the previous recommendation that JRC retain its certification to employ Level III interventions in behavior modification programs."
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n9 Patients in this program are given a daily caloric requirement based on standardized height and weight charts. They do not receive any food except that earned by passing "behavior contracts" which require that the patient not exhibit some or all of his or her target behavior for a specified period of time. Patients who earn less than their daily caloric requirement are provided "makeup food" in the evening if they receive less than twenty per cent of their caloric requirement during the day. Under the program, a patient could remain on the reduced calorie diet until his or her weight was 87.5% of his or her mid-weight of the desired range.
n10 The GED (graduated electronic decelerator) program is a procedure which involves an electrical stimulus which is utilized when a client engages in maladaptive behavior.
n11 The GED-4 is a stronger version of the GED.
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Despite the recommendations of the review teams, the department did not certify JRC. No one in the department spoke to the assistant general counsel about the 1993 report, and, to his knowledge, no one in the department spoke to any members of the team concerning the 1993 report. The commissioner, however, asserted that the 1993 certification team report was not complete because it had not been signed by one member of the review team who had since left the department. The judge also found that neither the 1991 report nor the 1993 report was ever read by the commissioner or the assistant commissioner for quality assurance. Nevertheless, some of the information found in the certification team reports was used in communications to parents, funding agencies, and the court. Despite using this information, however, the commissioner "never revealed the existence of or sent a copy [*437] of the 1991 or 1993 certification reports to the Court Monitor, JRC, the funding agencies of JRC, the parents of JRC [patients], or the Court." Rather, the department, led by the commissioner, began a regulatory barrage of JRC that was to last two years. n12
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n12 The judge also found that the commissioner's actions toward JRC were motivated at least in part because of his fear that the agency might be portrayed in a negative light by the CBS News television program "Eye-to-Eye." CBS News had contacted the department in the spring of 1993 and requested certain information relative to JRC. The commissioner spoke to the producer of the show and was concerned that the show might depict the department as not doing its job in regulating JRC. While the commissioner testified that he never did anything in anticipation of that program, documents revealed that the commissioner had taken certain actions with the television program in mind.
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On August 6, 1993, the department mailed the first of several letters to JRC. While the letter purported to grant "interim certification" to JRC, the judge found that "it was in reality the first volley in a series of actions designed to put JRC out of business." The letter, which followed the favorable report of the 1993 review team by just a few weeks, stated that the department had found "continued and repeated noncompliance [by JRC] with the requirements of [department] regulations."
Following the August 6, letter, JRC requested a meeting with the department and the court monitor pursuant to a provision in the settlement agreement. Between 1987 and at least as late as March, 1993, JRC and the department utilized a court monitor appointed pursuant to the settlement agreement to settle disputes. However, following the August 6, letter, the department declined to meet with JRC if the court monitor was to participate. After JRC's attempt at mediation failed, JRC then responded to the August 6, letter on August 27, 1993, by delivering a written point-by-point refutation of the allegations contained in the letter of August 6, accompanied by three cubic feet of documentation. [***12]
On August 31, 1993, the department sent JRC another letter stating that the department had learned from a source "other than JRC" that there were problems with misfirings of the GED. JRC, the commissioner wrote, was "in violation of (the department) regulations" but the department would "give [JRC] further opportunity to provide information." The letter set forth a number of conditions that JRC was required to [*438] meet to receive interim certification. One of the conditions, condition 1, restricted the use of certain procedures at JRC. The judge found that this "directly contradicted orders of this Court" and that the commissioner "administratively overruled outstanding orders of this Court" in violation of the settlement agreement.
Another condition of the letter, condition 10, required JRC to notify all funding sources that there must be in place within sixty days an emergency plan to address the funding and logistics of any unexpected medical, personal, or programmatic situations which JRC deemed were beyond its capacity to address. The condition went on to state that the plans "must provide evidence of the funder's ability to immediately provide all [**135] needed services for such clients [***13] so as to ensure that the client is not substantially endangered." The commissioner testified that this condition was based on prior situations where JRC had unexpectedly discharged patients. The commissioner, however, could only identify one such discharge that had occurred in 1991, and he acknowledged that other providers had unexpectedly terminated patients and that no similar condition had ever been imposed on a provider. The judge found that this condition was purposely designed to obstruct JRC's intake of new patients by alarming funding agencies and was in fact part of a plan to place JRC into receivership or to put JRC out of business.
On September 20, 1993, JRC, the department, and the court monitor reached an agreement whereby JRC would not have to comply with condition 10. Despite this agreement, however, the department mailed copies of the August 6, and August 31, 1993, letters to all of JRC's funding agencies. The letter contained condition 10, despite the agreement modifying condition 10 that had been reached between JRC and the department. Moreover, the judge found that "it was not customary practice to keep funding agencies advised of the certification process. [The] [***14] commissioner could not explain why it was important to send these letters out [and] could not offer an explanation as to why funding agencies were not advised in this mailing that condition 10 had been modified." The judge concluded that the mailings were made in bad faith with the intent to interfere with JRC's relationships with its funding agencies. In addition, on September 22, 1993, the department filed an unsolicited "Report to the Court" [*439] concerning JRC's "status." Although the document contained numerous reports concerning JRC, including the August 6, and August 31, letters, it did not contain the two favorable certification reports. The judge also found that the report contained "blatant false statements and material omissions" and that the department failed to include the favorable certification recommendation because "they would have contradicted (the department's) report to the court."
On September 24, 1993, the department sent JRC another certification letter addressed to JRC's executive director indicating that certification would be granted conditionally until December 15, 1993. The letter, which was also sent to funding agencies, stated that there were fourteen abuse [***15] investigations arising from complaints by former JRC staff and patients. In addition, the letter stated that the allegations were "quite serious on their face, and include claims that [JRC'S executive director] personally [was] involved in, or responsible for, abuse against specific [JRC] clients." The commissioner testified, however, that revealing information about abuse charges prior to having them substantiated was a departure from the department's acknowledged practice. In addition, the commissioner conceded that, although the allegations were investigated and not substantiated, the department never sent out a letter so advising the funding agencies.
On December 15, 1993, the commissioner sent JRC yet another letter which stated that "your failure to report a death in 1991 made it impossible for me to fulfil my responsibilities . . . . [JRC] has in the past failed to report deaths and serious injuries as required by law." Again, a copy of this letter was sent to funding agencies. The commissioner admitted in his testimony that his reference to "deaths" was an error and reasoned that it was a typographical error. The judge concluded that the error was intentional, finding [***16] that no patient had died at JRC in 1991, and the only death remotely involved was the death of a patient in 1990 which was reported by JRC and that, contrary to the commissioner's testimony, the document did contain sufficient information for an investigation.
In addition to sending out numerous letters to JRC regarding the certification process, from at least September 7, 1993, until the spring of 1994, the commissioner instituted "Tuesday Morning Meetings." These meetings were attended at times [*440] by a "large group" of individuals and at other times by a "small group" of individuals. The commissioner and the assistant commissioner for quality assurance testified that the meetings were held strictly to deal with issues of [**136] certification. These meetings did not, in fact, deal strictly with certification. Rather, the judge concluded that a plan was developed at the September 7, 1993, meeting to disrupt the operations of JRC by every conceivable means, including interfering with the financial operations of JRC and disrupting JRC's relationships with funding agencies and parents.
One of the work plans from the Tuesday morning meetings stated that December 15, 1993, was "D-Day" for JRC. [***17] The December 15 date coincided with the date JRC's temporary certification was expected to expire and fell just a few days after the department expected to receive a report from an "independent" consulting firm (Rivendell review team), which had been selected by the department to conduct an independent review of JRC. Such a review was suggested by the assistant commissioner for quality assurance to the commissioner because she alleged that prior evaluations, including the certification reports of 1991 and 1993, were insufficient. The judge, however, found that the Rivendell review team was anything but "independent" because the head of the Rivendell review team had previously signed a document entitled "Call to Action by Amnesty International," which equated the use of aversives with political torture. The judge found that attachments to the "Call to Action" were directed at JRC and made "serious and outrageous claims of mistreatment" by JRC. In addition, the judge concluded that the assistant commissioner for quality assurance's allegation that reports of prior review teams were not sufficient was "not truthful [because] she acknowledged that she had not even seen the 1993 certification [***18] report until sometime in April 1995." Moreover, the judge concluded that the "request for a proposal" (RFP) process whereby the assistant commissioner for quality assurance solicited bids for the independent program review was inconsistent with the Commonwealth's policy because the RFP contained only a ten-day turn-around time and was only sent to a select group of recipients.
In January of 1994, the department arranged a meeting with a New York agency that funded patients at JRC. JRC learned of the meeting and requested that a guardian ad litem [*441] be allowed to attend. After agreeing to this request the department canceled the meeting. JRC then requested in writing that it be notified of any future meetings or telephone conferences with the New York agency. Nevertheless, department officials held a telephone conference with representatives of the New York agency without notifying JRC. On February 28, 1994, the New York agency wrote to the parents of all New York patients at JRC and told them that alternative placements for their children would be offered in New York. The judge concluded that "the meeting with New York officials was a continuation of the commissioner's campaign of interfering [***19] with JRC's relationship[s] with its funding agencies."
On February 9, 1994, the department sent JRC a letter requiring JRC to comply with twelve more conditions by May 8, 1994. If JRC fully complied, the department agreed to certify JRC for two years. One of the conditions was that JRC rewrite all of its behavior modification treatment plans (approximately fifty-five) and allow two new psychiatrists and physicians to conduct independent psychiatric and medical evaluations on every JRC patient (approximately sixty patients) within eighty days. The commissioner did not read the reports of these psychiatrists, and not one of the evaluations recommended the discontinuation of Level III treatment procedures. Moreover, the judge found that the commissioner could not identify any credible reason for the imposition of the condition regarding medical evaluations.
In the spring of 1994, the department and JRC began six weeks of intensive negotiations regarding the conditions of certification contained in the February 9, 1994, letter. An agreement was reached on July 5, 1994, in which the department extended JRC's certification to December 31, 1994. The department also agreed that the rewritten [***20] behavior modification plans would be submitted on a weekly basis. The assistant commissioner for quality assurance and a psychologist at JRC developed a prototype treatment plan based on one of JRC's most difficult patients. This treatment plan, which was approved by [**137] the assistant commissioner for quality assurance, became the model by which every other treatment plan was to be written. The department, however, later alleged that the behavior modification plans submitted by a psychologist at JRC did not comply with department regulations.
[*442] The allegation that the plans did not comply with department regulations was made in a letter dated January 20, 1995. This letter also purported to extend JRC's certification, provided that six new conditions were satisfied, one of which required JRC to discontinue Level III interventions for six individuals, including an individual in a related case, Guardianship of Brandon, post (1997), a patient at JRC who had been the subject of a recent five-day treatment plan review by a Probate Court judge. The January 20, letter also required that JRC discontinue the Specialized Food Program. JRC requested mediation of the dispute but there [***21] was no response until April 7, 1995, when a department official stated that the department remained "open to addressing . . . any issue JRC may have regarding the certification process." That response, however, was meaningless because the department decertified JRC on March 23, 1995, effective July 1, 1995. On March 24, 1995, a preliminary injunction was entered enjoining the department from decertifying JRC. n13
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n13 See note 4, supra.
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The judge interpreted the settlement agreement to require that "decisions on treatment were reserved for the Court." She also found that part B of the settlement agreement appointed a court monitor who was to undertake a general monitoring of JRC's programs and to arbitrate any disputes between the parties. Finally, the judge noted that part L of the settlement agreement required the parties to discharge their obligations under the terms of the agreement in good faith. The judge concluded that, on the basis of these facts, "the provisions of the court-ordered settlement agreement [***22] are clear and unequivocal commands which are binding on the defendant. . . . The defendant is in contempt having clearly and undoubtedly disobeyed the Order of this Court." n14
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n14 The department argues that the judge's "entire application of the law of contempt to the facts of this case" consisted of these two sentences and that therefore the judge did not make clear what conduct by the department constituted "clear and undoubted disobedience" of the settlement agreement. This argument is without merit. The judge made extensive factual findings, many of which referenced the provisions in the settlement agreement that had been violated by such actions. In addition, in the order denying the department's motion to stay the judgment pending an appeal, the judge further specified which of her factual findings constituted violations of the settlement agreement.
We note also that the judge denied the department's counterclaim alleging that JRC had violated the settlement agreement. The department does not appeal from the decision denying the counterclaim.
