Residential Program Treating Behavior Disorders and Developmental Disabilities

FINDINGS OF FACT

1. This matter was heard by the Court on a Complaint for Contempt Pursuant to Rule 65.3 of the Massachusetts Rules of Civil Procedure, as amended, brought by The Judge Rotenberg Educational Center, Inc. (JRC) and parents and guardians of students at Judge Rotenberg Center against Philip Campbell, in his capacity as Commissioner of the Department of Mental Retardation (DMR).[1]

Footnote [1] Judge Rotenberg Center (JRC) was formerly known as the Behavior Research Institute (BRI). Judge Rotenberg, who presided over this litigation, died July 1992. This Judge was designated to succeed him by order dated August 1992.

2. Trial in this case began on Monday, June 26, 1995, and continued through July 14, 1995, for a total of thirteen trial days. Four hundred and eight exhibits[2] were introduced and seventeen witnesses testified.

Footnote [2] This litigation was somewhat unusual due to the fact that the actions of all parties are fully documented in these exhibits. Exhibits referred to herein are as follows: Entered by Agreement 1-235, offered by JRC and entered by the Court 236-326.

3. This matter came before the court as a Contempt Complaint brought by JRC against DMR to enforce the terms of a Settlement Agreement that “resolved” extensive and difficult litigation. The Settlement Agreement was entered as an Order of the Court on January 7, 1987. DMR voluntarily entered into the Settlement Agreement on December 29, 1988. For this reason, the critical issue in this litigation is not that of the authority of the Administrative Agency versus the authority of the Judiciary.

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.

PROCEDURAL BACKGROUND

5. On December 12, 1986, JRC, the parents of students at JRC, and the students through their legal representatives, entered into the Settlement Agreement with Mary Kay Leonard, individually, and in her capacity as Director of the Massachusetts Office for Children (“OFC”). The Settlement Agreement ended litigation between the Commonwealth and JRC which began on September 26, 1985, when OFC issued an order to show cause why JRC’s license to operate should not be suspended. On June 4, 1986, this Court entered a preliminary injunction against the Director of OFC finding that she had engaged in bad faith in her regulatory activities concerning JRC.[3]

Footnote [3] This Court’s order, as well as its Findings in Support of Preliminary Injunctive Relief dated June 4, 1986, were affirmed in a decision by the Single Justice of the Appeals Court (Greaney, J.) dated July 30, 1986 (Docket No. 86-0318).

On October 31, 1986, this Court awarded JRC, and the parents, the sum of $580,605.25 which represented the legal fees incurred as a result OFC’s bad faith actions. Shortly thereafter, the parties engaged in settlement discussions which culminated in the execution of the Settlement Agreement.

6. On January 7, 1987, the Court found the Settlement Agreement to be fair, reasonable and adequate, and incorporated the Settlement Agreement as an Order of this Court. (Exhibit 4). In accordance with the terms of the agreement, John Daignault, Ph.D., was appointed Court Monitor.[4]

Footnote [4] Indeed, the parties had agreed in the Settlement Agreement that Dr. Daignault would be the general monitor of BRI’s treatment program, and that Dr. Daignault “shall undertake general monitoring of BRI’s treatment and educational program.” (Exhibit 2, p.7). The parties also agreed in the Settlement Agreement that Dr. Daignault “shall be responsible for overseeing BRI’s compliance with all applicable state regulation, except to the extent that those regulations involve treatment procedures authorized by the Court in accordance with Paragraph A.”

7. On February 12, 1987, this Court issued a memorandum to all partied in this case, restating material provisions of the Settlement Agreement concerning the Court Monitor.[5]

Footnote [5] This memorandum stated that in order to insure full consideration to the guardianship and substituted judgment issues for each appropriate JRC student, while at the same time maintaining an orderly process based on clinical need in addressing the large JRC population, the Court is requesting that all interested parties initially channel information through the Court Monitor. The Monitor will assist the Court in scheduling matters to be heard before the Court according to the primary criterion of urgency and clinical need. In addition, the Monitor will keep the Court appraised of all developments in his regular reports to the Court. Lastly, all parties are reminded of the Monitor’s role as outlined in the Settlement Agreement insofar as all conflicts or disputes shall be brought initially to the Monitor for attempted resolution. (Emphasis supplied).

8. On July 7, 1988, the Court Monitor filed a report with this Court in compliance with the six-month review required by the Settlement Agreement. (Exhibit 9). It stated that the parties were complying with the Settlement Agreement, but that JRC had yet to be licensed by the Department of Mental Retardation (which had assumed the responsibilities under the Settlement Agreement from the Department of Mental Health, “DMH”).[6]

Footnote [6] At the time of the 1985 litigation OFC was responsible for licensing JRC. That responsibility was transferred by the legislature to DMH in July 1, 1987. Finally, said function was transferred to DMR on December 29, 1988.

9. In response thereto, this Court issued an order July 7, 1988, extending jurisdiction over the Settlement Agreement “until further order of this Court.” The Court’s order noted that there were no objections to the extension of jurisdiction.

10. On October 24, 1988, the Department of Mental Retardation filed a motion with this Court to modify the Settlement Agreement by deleting the Department of Mental Health whenever appearing in the Settlement Agreement, and inserting the Department of Mental Retardation.

11. On December 29, 1988, the Court accepted the motion filed by the Department of Mental Retardation as an intervention in the action under Rule 24 (b)(2) and the Court welcomed DMR as a “party under the Settlement Agreement.” (Exhibit 13) No party appealed this order.

12. DMR consistently held itself out as a party to the Settlement Agreement until August of 1993. At that time, DMR abruptly changed its position without any attempt to bring this change to the attention of the Court.

13. The Settlement Agreement was designed to protect JRC, the Students and their families from future bad faith conduct by state officials while safeguarding the state’s interest in the welfare of children.

STATEMENT OF THE CASE

14. On September 2, 1993, JRC filed a Complaint for Contempt alleging that DMR was in violation of the Court Ordered Settlement Agreement.

15. On March 28, 1995, JRC filed its Revised Verified Third Amended Complaint pursuant to Rule 65.3 of the Massachusetts Rules of Civil Procedure. The amendments alleged additional acts of contempt which had occurred since the filing of the original action.

16. In its Contempt Complaint, as amended, JRC alleged that Defendant Commissioner Campbell and the Department were in contempt for violating the following provisions of the Settlement Agreement:

A) ¶ A of the Settlement Agreement in which decisions on treatment were reserved for the Court,[7]

Footnote [7] “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 not able to provide informed consent thereto...[T]hat portion of the plan which involves the use of aversive or extraordinary procedures may be implemented only upon authorization of the Court in a temporary guardianship proceeding (or, upon Motion, to modify an existing guardianship order) utilizing the “substituted judgment criteria.” (Exhibit 2, at ¶¶ A-1, A-5 and A-4 (c) (ii)).

B) ¶ B-2 of the Settlement Agreement in which Dr. Daignault was appointed Court Monitor and was to undertake a general monitoring of BRI’s treatment and educational program,[8]

Footnote [8] The Settlement Agreement states, ‘Dr. John Daignault shall 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 Paragraph A.” (See Exhibit 2, ¶ B-2).

C) ¶ B-2 of the Settlement Agreement, in which Dr. Daignault was also responsible for arbitrating any disputes between the parties. In the event that any party disagreed with Dr. Daignault’s decision or recommendation, he was to submit the matter to the Court for resolution,

D) ¶ L of the Settlement Agreement which state that “[E]ach party shall discharge its obligations under the terms of this agreement in good faith.” (Exhibit 2 at ¶ L), and

E) ¶ C-3 of the Settlement Agreement which states, “Upon the execution of this agreement, intake at JRC for new clients shall be reopened and shall not be impermissibly obstructed during the pendency of this proceeding.” (Id. at ¶ C-3).

17. DMR has asserted that it is not a party to the Settlement Agreement and, even if it is, that it has not engaged in any violations of the Settlement Agreement. DMR has also argued that the “good faith” provisions of the Settlement Agreement require DMR to engage in good faith in only with respect to the Settlement Agreement and, to the extent that DMR has engaged in bad faith (which DMR does not concede), it is bad faith which is not covered by the Settlement Agreement.

18. The Settlement Agreement allowed JRC and its students to recover from the damage caused by the controversy of 1985-1986. From 1987 through 1993, JRC and its students enjoyed tremendous benefits from the JRC treatment programs. (These are set forth in the findings of this Court in the various individual guardianship actions.)

19. Following the Settlement Agreement, the Department of Mental Health drafted regulations concerning the use of “Level III” procedures, which included certain aversive procedures utilized at JRC. See 105 CMR 20.15. The parties have agreed that those regulations have been unchanged since they were first instituted. The regulations were written after extensive discussion and consultation with Dr. Daignault who was instrumental in their formulation.

20. DMR regulations require that programs utilizing Level III procedures be “certified” by the Department of Mental Health (which authority was subsequently transferred to the Department of Mental Retardation).[9]

Footnote [9] The certification process was intended to certify “programs”. Individual treatment decisions utilizing Level III Aversive were reserved for the Court in the Individual Guardianship Proceedings.

JRC applied for certification in 1988. On April 20, 1989, JRC was granted certification for a two year period.

21. Attached to the initial grant of certification was a memorandum prepared by DMR General Counsel Kim Murdock concerning the behavior modification regulations. (Exhibit 15). ¶ 14 of the memorandum addressed the potential for a conflict between substituted judgment orders of the Probate Court and DMR regulations. ¶14 of the memorandum noted that the Department’s treatment plans should not be amended until after a substituted judgment hearing before this Court, and stated that such interpretation of the regulation “is necessary to prevent conflicting decisions by Departmental Hearing Officers and the Probate Court, since obviously an Executive Branch Hearing Officer cannot overrule Court decisions.” (Emphasis added.) The memorandum also noted that such a practice was “consistent with Departmental practice in Rogers cases.” (Id. at p. 4, ¶14).

22. Although allowed to do so, DMR did not participate in the innumerable substituted judgment proceedings involving JRC clients in this Court until sometime after August 1993 when DMR adopted a drastically different JRC policy.

23. The evidence in this case establishes that DMR has represented to the Courts of the Commonwealth, including the Supreme Judicial Court, as well as third parties, that it is a party to the Settlement Agreement and bound by its terms. See, In Re:McKnight, Brief of Appelant DMR, p. 6.[10]

Footnote [10] The brief was originally filed in the Appeals Court. The Supreme Judicial Court took the case on direct appellate review.

In DMR’s brief to the full bench, the Assistant Attorney General stated on p. 6:

“That action was resolved by a Settlement Agreement, entered as an order of the Probate Court, on January 7, 1987 (App. 37-57). DMR is a party to that Settlement Agreement, having been joined by order of the Probate Court dated December 29, 1988, in response to DMR’s motion, which was grounded on DMR’s role in licensing and regulating providers of treatment for autism.”

DMR’s course of conduct prior to August of 1993 established that it was a party to the Settlement Agreement.

24. After execution of the Settlement Agreement, the Court Monitor, Dr. Daignault, had several meetings with Mary McCarthy, who at the time was the Deputy Commissioner for the Department of Mental Retardation.[11]

Footnote [11] DMR was then part of the Department of Mental Health. Later Mary McCarthy became the Commissioner of the Department of Mental Retardation when DMR became an independent agency.

25. Dr. Daignault had a good working relationship with Commissioner McCarthy. Between October 1986 and September of 1988, he had numerous meetings with her regarding JRC. The primary issues concerned JRC’s licensure and certification. (Licensure relates to the facilities; certification relates to the program.) General Counsel of DMR, Kim Murdock, attended a number of these meetings.

26. In 1987 Dr. Daignault successfully exercised his role as mediator in a dispute wherein JRC alleged a DMH official was wrongfully interfering with intake. DMR representatives attended the mediation meeting.

27. JRC requested mediation under ¶B-2 of the Settlement Agreement which resulted in another mediation meeting on or about May 1987, concerning the lack of referrals from DMR.

28. At no time did DMR question Dr. Daignault’s authority in acting as Court Monitor.

29. On October 30, 1989, Deputy General Counsel of DMR, Margaret Chow-Menzer, who is counsel of record herein, wrote a letter to Dr. Daignault specifically invoking the provisions of the Settlement Agreement “as amended on December 29, 1988.”

30. On or about November 18, 1989, counsel for JRC requested Dr. Daignault convene a mediation meeting concerning ‘licensure’ of JRC. Within two months, JRC received licenses for its facilities which, the Court finds, were the direct product of the mediation session.

31. Dr. Daignault was also required to oversee JRC’s compliance with regulations. On January 19, 1990, General Counsel Murdock wrote to Dr. Daignault concerning abuse complaints stating that she had reviewed the complaints and concluded that the acts fall within the category of treatment JRC is authorized to use (See Exhibit 23, p.2). She forwarded the complaints to Dr. Daignault as the Court Monitor, and indicated that if the treatments were not authorized, DMR would be required to conduct its own investigation. Based on his investigation, Dr. Daignault ultimately concluded that no abuse had occurred nor was there a violation of the Court Ordered treatment plans.

32. The relationship between Dr. Daignault and DMR remained productive. On February 14, 1990, Attorney Chow-Menzer wrote to Judge Rotenberg notifying him that the Department had arranged for a particular psychologist to serve as a “DMR expert” in response to a request from Dr. Daignault.[12]

Footnote [12] The Settlement Agreement states that DMR is obligated to provide technical assistance to Dr. Daignault as he might request.

33. On February 28, 1992, the Office of Quality Assurance for the Mental Retardation Consent Decrees (“OQA”) sent a letter to Commissioner Campbell concerning two clients who were members of the class of students protected by Federal Court consent decrees. The letter raised questions concerning JRC’s use of behavior modification procedures with respect to these two clients who were now at JRC. Commissioner Campbell authorized General Counsel Murdock to prepare a response.

34. On March 27, 1992, Attorney Murdock responded as follows:

“As you know, due to past litigation, the Department is currently bound by a Settlement Agreement with respect to this program. All so-called aversive interventions used at JRC must be approved by the Bristol County Probate Court; the Department’s involvement in the actual treatment is limited. If you still desire details on the treatment of the two class members mentioned in [your] letter, I suggest that you contact the Court Monitor for the JRC case, Dr. John Daignault.” (Emphasis supplied).

This letter constituted a candid acknowledgment that the Department was a party to the Settlement Agreement and therefore did not have unilateral authority over treatment interventions approved by this Court.

35. With respect to the statement quoted above, it should be noted that Commissioner Campbell testified it was Ms. Murdock who had advised him that he was not a party to the Settlement Agreement.

36. As late as March 1993, DMR continued to acknowledge the Court Monitor’s authority. On March 15, 1993, DMR Deputy General Counsel, Margaret Chow-Menzer, sent Dr. Daignault a letter regarding the use of “DMR expert” Dr. Frederick Krell. (Exhibit 65) In this letter she stated :

“In my reading of the Settlement Agreement, it is the Court Monitor who is responsible for overseeing JRC’s treatment and educational program and to ‘report to the court concerning any issues he deems necessary relating to the health, safety, or well-being of any JRC client.’ The Settlement Agreement clearly reflects the understanding of the court and the signatory parties in your [Dr. Daignault’s] ability as the court appointed monitor to make the threshold determination of whether a JRC treatment program was presenting a serious risk to the JRC student. The Agreement squarely places the responsibility on you to alert the court if in your judgment such a risk existed.”

37. In a letter dated March 22, 1993, General Counsel Murdock noted that Commissioner Campbell wished to testify on a bill before the legislature which would “prohibit aversive treatment.” (Exhibit 67) Ms. Murdock stated in this letter, “As Commissioner of the Department of Mental Retardation, he feels strongly that the Commonwealth should follow the lead of other states that have prohibited such treatment, as a matter of public policy.”

It went on to state as follows:

“I have advised the Commissioner of my concern that the Settlement Agreement in the original JRC/OFC litigation (while it does not specifically address the situation) may be interpreted by some to prohibit him from taking the position on the legislation. As you know, the Department has historically been neutral on this bill. The Commissioner has assured me that it is not his intention to violate a legal obligation.”

38. JRC responded by registering its objection to Commissioner Campbell’s testimony. Accordingly, the Commissioner did not testify on the bill.

39. JRC received it certification in April of 1989, due to expire April 1991. On December 5, 1990, JRC wrote to DMR, requesting an application for recertification.

40. It took DMR more than six months to respond by finally mailing the application for recertification. The Department then gave JRC only thirty days to submit the application with its supporting documentation. JRC complied on July 31, 1991.

41. Following the receipt of JRC’s application for recertification, the Department assigned a team to evaluate the application and make a site visit to JRC. The team consisted of George Casey, Esq., an attorney employed by DMR, and Dr. Kevin Reilly, the Chief Psychologist at the Wrentham State School. Dr. Reilly and Attorney Casey made a site visit to JRC on December 9-10, 1991. They reviewed voluminous materials and met with a number of employees at JRC.

42. On December 21, 1991, Attorney Casey prepared a report concerning JRC’s request for certification. The report recommended that JRC be recertified to employ aversive procedures, subject to five conditions which Attorney Casey characterized as “minor” and which concerned the functioning of the Human Rights Committee. The report also included compliments about JRC which concluded that the programs at JRC were in conformity with DMR regulations and the directives of the Bristol County Probate Court. Attorney Casey and Dr. Reilly had reviewed the specialized food program and the GED program during the site visit to BRI.

43. DMR took no action regarding the certification report dated December 21, 1991. Finally, almost six months after the report was submitted, Amanda Chalmers, the Department’s designee, notified Dr. Israel, the Director of JRC, by letter dated June 10, 1992, that DMR had “accepted the recommendations of the team headed by Attorney Casey”, and incorporated the five minor conditions in the Casey Report. DMR did not grant certification to JRC at this time even though this was the major recommendation of the Casey Report.

44. On July 21, 1992, Ms. Chalmers sent another letter to Dr. Israel stating that, since her letter of June 10, 1992, two new behavioral programs had been “brought to my attention which should be reviewed as part of the recertification process”: the Specialized Food Program and the GED Program. Ms. Chalmers also announced in this letter of July 21, 1992, (Exhibit 46) that she would be assembling a review team, which would include a nutritionist and a physician, to return to JRC with the express purpose of reviewing the Specialized Food Program and the GED Program. [13]

Footnote [13] The GED Program is a Court-approved procedure which involves an electrical stimulus which is utilized when a client engages in a maladaptive behavior. Likewise, the Specialized Food Program was Court-authorized.

45. Contrary to her assertion, the Specialized Food Program and the GED Program were known to the Department of Mental Retardation at the time of the visit by the Casey Certification Team in December of 1991. Commissioner Campbell himself had been informed of these two programs in a memorandum of October 31, 1991 from his Director of Human Rights, Neil R. Lazara.

46. On May 5, 1993, the second full review team came to JRC to conduct its evaluation of JRC’s application for recertification. The team included Dr. Anne Myers, a DMR physician working at the Fernald School, Dr. Jens Lauridsen, a DMR physician also working at the Fernald School, Irene Whalen, R.D., a nutritionist working at the Fernald School, as well as Dr. Kevin Reilly and Attorney George Casey.

47. The second review team determined that JRC had complied with all five prior conditions of certification in the December 21, 1991 report. The team also concluded that there were no adverse health effects from either the GED-4 ( a stronger version of the GED) or the Specialized Food Program. The team concluded that a majority (90) percent of the non-obese students in the Specialized Food Program had actually gained weight or remained stable under the program. (Exhibit 75, p. 4). The team could discern “no adverse health consequences of the Specialized Food Program” as currently practiced at JRC and as practiced over the past three years. With respect to the GED-4, it was the opinion of the team and, in particular, the opinion of Dr. Lauridsen, that the amount of power utilized was “extremely low and not harmful to anyone”. Furthermore, the GED-4 was found to have all the safety features of the original GED device, as described in Court papers.

48. The second review team concluded that after a “thorough” investigation, the present use of the GED-4 Program and the Specialized Food Program were being carried out “within the mandate of the regulations of the Department of Mental Retardation”, and stated “there is no reason to change the previous recommendation that JRC retain its certification to employ Level III interventions in behavior modification programs.” (Id. at p. 11). The team recommended that JRC be certified to employ Level III interventions with two minor provisions [14].

Footnote [14] One provision would require JRC to inform DMR in the event that changes were made to the GED device (such as an increase in power), and the other would require an enhanced record keeping for the Specialized Food Program . (Exhibit 75 at p. 11)

It was clear that the team found JRC to be in full compliance with the regulations.

49. Attorney Casey considered the July 15, 1993 report to be “complete”. He forwarded the report to General Counsel Murdock at the Central Office of the Department of Mental Retardation. No one in the Department spoke to him about the report and, to his knowledge, no one spoke with any members of the team concerning the report. No one ever suggested to him that the report was incomplete.

50. After the second team visit, Attorney Casey also requested certain information concerning “misfires” of the GED device. [15]

Footnote [15] “Misfires” are situations where the device is activated spontaneously because of some electrical interference.

Attorney Casey discussed this issue with a variety of JRC staff members and reviewed certain materials from JRC relative to the “misfires”. The team concluded that the misfires were “not frequent enough to have an impact on the safety aspect of the GED, but the information concerning the misfires had been requested after the site visit”.

51. With the exception of Dr. Riley, who had since left DMR, all members of the review team signed the report which was submitted to Attorney Murdock. This court finds that the report was complete.

52. The report of the Certification Team was never read by Commissioner Campbell, Dr. Mary Cerreto or any of the key individuals who were making decisions on JRC’s certification until 1995. In fact, Commissioner Campbell never read the certification report until after his deposition in 1995. As Commissioner Campbell testified, no member of the Certification Team was brought into any of the subsequent discussions about certification and none of them were contacted to analyze or assist in the evaluation of follow-up information presented by JRC. This fact alone is strong evidence of the bad faith purpose of those discussions.

53. Commissioner Campbell gave contradictory testimony between his deposition and trail concerning his awareness of the certification reports. [16]

Footnote [16] The Commissioner testified at trial that he received the first report of the certification team in December of 1991. (Tr. June 28, p. 69, 1. 22-24). However, he testified in his deposition that he did not ever recall receiving a report from Mr. Casey or Dr. Riley concerning their review of JRC in 1991. Nor had he read the 1991 report as of the date of his deposition. (Tr. June 2,. p. 70 to p. 71). He also testified in his deposition that he had not read the report of the second review team on the day of his deposition. Id. He testified that at the weekly certification meetings concerning JRC which commenced in the summer of 1993, the 1991 and 1993 reports of the certification team were never discussed. (Tr. June 28, p. 74.) While the Commissioner attempted to testify at trial that he was informed by his General Counsel that the July 1993 report recommended certification, the only thing he could recall about the reports in his deposition was that Attorney Murdock told him that the report was incomplete. (Tr. June 28, p. 74 & 76).

Commissioner Campbell admitted that there was an inconsistency between the testimony in his deposition and his testimony at trial. Dr. Mary Cerreto, the Commissioner’s chief clinical advisor on recertification, also never read the 1991 and 1993 reports, even though she knew three members of the second team.

54. Commissioner Campbell asserted that the 1993 certification team report was not “complete”. His only justification for considering the report incomplete was the fact that it was not signed by Dr. Riley.

55. Commissioner Campbell’s testimony, regarding the lack of completeness of the Certification Team Report, is striking in light of the fact that he did not even know what instructions were given to the certification team and, indeed, had no idea what the team was asked to do.

56. Commissioner Campbell never revealed the existence of or sent a copy of the 1991 or 1993 certification reports to the Court Monitor, JRC, the funding agencies of JRC, the parents of JRC students, or the Court. (Emphasis supplied). [17]

Footnote [17] In fact, the very existence of these reports did not become known until days before the start of trial, as part of DMR’s response to Discovery Requests.

57. In spite of all this, Commissioner Campbell acknowledged that he used some of the information of the certification team reports in his subsequent communications to parents, funding agencies and this Court.

58. In the spring of 1993, CBS News contacted the Department of Mental Retardation concerning an upcoming program which CBS wanted to do on JRC for the “Eye-to Eye” program and requested certain information relative to JRC. (See Exhibit 255).

59. Commissioner Campbell spoke to the producer and was concerned that the show might depict the Department as not doing its job in regulating JRC.

60. Commissioner Campbell met with Under Secretary of Executive Office of Health and Human Services (EOHHS), Janet George, concerning the upcoming CBS program.

61. Commissioner Campbell testified that he never did anything in anticipation of the upcoming CBS television program. This testimony was false. It was given before the Commissioner was presented with notes and agendas of his “Tuesday Morning Meetings”(discussed infra.). These notes demonstrate that various DMR actions, such as the mailing of letters to parents, were strategically planned “in anticipation” of the Chung program.

62. This Court finds that Commissioner Campbell’s concern as to how his agency might be depicted in the upcoming CBS television program was at least part of the reason why he abruptly changed his position concerning both the Settlement Agreement and the JRC program. The Commissioner’s concern in that regard had absolutely nothing to do with the welfare of JRC clients, but was a material part of the Commissioner’s decision making.

63. On August 6, 1993, Commissioner Campbell mailed the first in a series of letters, the “August 6 Letter” to JRC, which was ultimately sent to all JRC out-of-state funding agencies, as well as JRC parents. (Exhibit 82). The August 6 Letter was also provided to the Court in the Report filed by DMR on September 22, 1994 and appended to the Commissioner’s Affidavit filed with this Court on February 16, 1995.

64. While this letter purported to grant “interim certification” to JRC, it was in reality the first volley in a series of actions designed to put JRC out of business. The Letter contained calculated statements which Commissioner Campbell and his staff knew were false, or which were made in reckless disregard of the truth.

65. Commissioner Campbell’s August 6 Letter was based upon the Commissioner’s “new” position that he was no longer a party to the Settlement Agreement. This “new position” has no factual or legal merit. The Commissioner testified that he was relying upon legal advice during this period of time. Such legal advice, however, is not a defense to a contempt action.

66. Commissioner Campbell stated in the August 6 letter that JRC had engaged in “continued and repeated noncompliance with [Department of Mental Retardation] regulations.” This of course was contrary to the report of the DMR certification teams lead by Attorney Casey. The second certification team report was dated July 15, 1993, approximately three weeks prior to this letter. Prior to the August 6 Letter, the Department had never given any notice to JRC that its treatment plans were no longer in compliance with the behavior modification regulations.

67. Commissioner Campbell further stated in the August 6 letter that his agency had been unable to conclude that the Specialized Food Program or other ‘painful interventions” were supported by professionally-acceptable evidence for use on clients, or were “effective in such use”. The Commissioner made this statement even though Court decisions upon Evidentiary Hearings firmly established that the procedures utilized at JRC were effective. [18]

Footnotes [18] (See,e.g., Findings of Fact of March 12, 1992, (Exhibit 240) ¶ 20, finding that there was a "notable unanimity of professional opinion in that case" that the GED was an "effective and medically-safe behavioral treatment technology." This Court decision was entered after four days of hearings which the Department of Mental Retardation chose not to attend. Reports from psychologists retained by the Department of Mental Retardation to participate in JRC proceedings establish that, as of August 6, 1993, the Department had in its files compelling evidence that the GED procedures and other procedures utilized at JRC were professionally-acceptable and effective. On April 29, 1993, less than four months before the Commissioner's letter, the Commissioner's legal department received a report from a psychologist retained by the Department in ongoing JRC treatment plan reviews. This psychologist, Dr. Frederick Krell, had sent the Department a report in this case for a profoundly-handicapped young man, whose initials are J.V., expressing his opinion that the treatment program at JRC, including the GED device, was "more effective than any other intervention which was applied over the previous 17 years" for this client. (Exhibit 244, p. 10). The Commissioner acknowledged that this was the type of information which was relevant to the issue of effectiveness, (Tr. June 28, p. 111, 1. 12-19), but it was not considered even though it was in the Department's own files.

68. Commissioner Campbell was unable to show that JRC had ever been asked to provide evidence that the GED-4 and the Specialized Food Program were professionally acceptable.

69. This Court concludes that Commissioner Campbell's testimony that he had been unable to conclude whether the treatment at JRC was effective, was without factual basis and in deliberate ignorance of clinical information prepared by psychologists retained by him, and contained in his office files.

70. On page 3 of the August 6 Letter, Commissioner Campbell asserted that the certification team headed by Attorney Casey "felt unable to reach a conclusion on whether the issue of GED misfires presented a problem for [JRC's] ability to comply with Section 20.15." This assertion was also false. The team obviously reached no such conclusion. The only material finding relative to the issue of misfires was Dr. Lauridsen's conclusion that the misfirings were infrequent and did not present a danger to the health and safety of the clients in the JRC program.[19]

Footnotes [19] In his August 6 Letter, Commissioner Campbell failed to acknowledge the findings of this Court on March 12, 1992, wherein this Court found that JRC had made a variety of technical changes to the GED device significantly reducing the number of misfires and that "there is notable unanimity of professional opinion here -- i.e., the GED is an effective and medically safe behavioral treatment technology." (Exhibit 240 at pp. 7-8)

71. Commissioner Campbell also determined in the August 6 Letter that a "review of the Human Rights Committee showed that there was little or no discussion, questioning, or analysis of treatments proposed to JRC clients." Yet, Attorney Casey had reviewed the minutes of six Human Rights Committee meetings in 1991 and had spoken with the Human Rights officer. In fact, Attorney Casey testified that when he returned to JRC in 1993, he found that JRC was complying with the five recommendations for change he had made in the 1991 report concerning the Human Rights Committee.

72. On page 5 of the August 6 Letter, Commissioner Campbell imposed several conditions upon JRC based upon JRC's alleged "continued and repeated non-compliance with the requirements of the regulations." (This statement contradicts the 1991-1993 DMR certification reports that JRC was in full compliance with regulations of the Department and, indeed, was operating "within the mandate of the regulations of the [DMR]....")

73. Also included in the August 6 letter was the requirement that JRC provide DMR, within 21 days, a "list of aversive techniques and an existing description of how such techniques are used at JRC." Yet, Attorney Casey testified that this information had been given to the certification team by JRC and reviewed by the team. A further condition of approval was that JRC provide copies of any published "peer-reviewed professional research," even though Attorney Casey remembered that some of this material had already been reviewed by Dr. Riley. Commissioner Campbell undertook no inquiry to determine whether the Certification Team already had this information.

74. Although Attorney Casey and Dr. Riley had already reviewed behavior treatment plans and had determined that the plans were in conformity with the regulations, Commissioner Campbell required that JRC provide, within 21 days, a sample treatment plan for Level III interventions "which complies with the regulation."

75. After taking no action for more than two years on JRC's application for recertification (submitted in July 1991,) Commissioner Campbell in his August 6 letter, implied that JRC had failed to make its case for certification and granted JRC only twenty-five days of conditional certification. The letter also implied that JRC failed to respond to the Department's requests for information. In fact, JRC had fully complied with all of DMR's requests for information. The Commissioner's letter falsely implies to the contrary.

76. The August 6 letter was calculated to portray JRC in a false and negative light. The letter misrepresents the findings of the certification team and fails to disclose other material findings of the certification report, particularly, the fact that the team had recommended certification.

77. The significance of the August 6 letter and later certification letters, is that it was not simply a communication between two parties, an Administrative Agency and an entity subject to its regulatory authority. The August 6 letter was widely distributed to parties who would be alarmed and misled by its contents: the Court, Out of State Funding Agencies and JRC Parents.

78. Attached to the August 6 letter was a copy of a letter from Dr. Paul Jansen[20] (Exhibit 81) which made certain allegations against JRC.

Footnote[20] Dr. Jansen is a psychologist who was retained by counsel for the wards in a number of JRC cases.

79. In the August 6 letter, JRC was directed to respond to the allegations of Dr. Jansen. The allegations of Dr. Jansen's letter were never substantiated by the Department, nor had the Department followed through and requested from Dr. Jansen the documentation which Dr. Jansen indicated in his letter he would be prepared to provide.[21]

Footnote[21] At trial, the Commissioner testified that steps were undertaken to substantiate the allegations of Dr. Jansen's letter prior to the time that it was communicated to funding agencies. Yet in his deposition he testified in a completely contrary fashion stating that no steps were taken by him to substantiate the allegations of Dr. Jansen. The Commissioner was again compelled to acknowledge the inconsistency between his sworn deposition testimony and sworn trial testimony.

80. Commissioner Campbell testified that he considered contacting the Court Monitor prior to writing the letter of August 6, 1993, but elected not to.

81. This Court finds it significant that the August 6 Letter was sent by Commissioner Campbell prior to any attempt to apprise the Court, or the Court Monitor, of the serious allegations which were made in the letter. Moreover, the Commissioner failed to inform this Court, the Court Monitor, or any other party that he had decided that he was no longer a party to the Settlement Agreement and was not bound by any of its provisions.

82. In response to the August 6, 1993 letter, JRC requested a meeting with DMR. The Department of Mental Retardation declined to meet with JRC if the Court Monitor was to participate in the meeting.

83. On August 19, 1993, JRC’s counsel sent a letter to counsel for the Department, David Ferleger, Esq., requesting mediation pursuant to ¶B-2 of the Settlement Agreement. Mediation was again requested by JRC on August 24, 1993. Counsel for the Department, David Ferleger, Esq., informed JRC’s counsel that it would not meet with either Dr. Daignault or Attorney Briggs present.

84. On August 19th, in response to JRC’s first request for mediation with the Court Monitor, Attorney Ferleger wrote to the Court Monitor alleging a conflict of interest. Specifically, Attorney Ferleger requested information regarding the Court Monitor’s financial and/or consulting relationships with JRC’s law firm. Commissioner Campbell “guessed” that it was coincidental that the issue was raised when mediation was first requested.

85. This issue with the Court Monitor culminated in accusations of a “conflict of interest” on the part of the Court Monitor because he had performed consultations for clients of the Eckert Seamans law firm which represents JRC. At the time these attacks were made, however, Dr. Daignault had been retained not only by counsel for the wards to consult on various unrelated matters, but by other agencies of the Commonwealth, including (as Commissioner Campbell conceded in his direct examination) the Department of Mental Retardation. Dr. Daignault is a highly respected and highly qualified forensic psychologist. [22]

Footnote [22] Dr. Daignault’s curriculum vitae is Exhibit 260.

86. The attack upon Dr. Daignault by Attorney Ferleger constituted nothing more than an attempt to intimidate and harass a court official. It was Dr. Daignault who had been overseeing JRC’s compliance with state regulations during the period from 1989 to 1993 when the Department’s role in its regulatory activity and substituted judgment cases was virtually non-existent. Attacks upon court officials in on-going proceedings are extremely rare, and the attack which took place in this case is demonstrative of the Commissioner’s bad faith. Commissioner Campbell would later use his own investigators to conduct an unwarranted inquiry concerning the GAL, Bettina Briggs, Esq.

87. In response to the refusal of DMR to meet with the Court Monitor, counsel for JRC wrote a letter to Attorney General Harshbarger on August 27, 1994, again requesting a mediation pursuant to ¶B-2 of the Settlement Agreement.

88. In response, Assistant Attorney General Douglas Wilkins sent a letter on August 31, 1993 responding that the “historical understanding” of the Settlement Agreement is “not what your letter sets forth.” (Exhibit 90)

89. It is incomprehensible why the Commissioner would have rejected even a meeting with the Court Monitor or the GAL, given the past practices of the Department in mediating issues with the Court Monitor.

90. Commissioner Campbell gave inconsistent statements as to whether or not he had ever agreed to mediate.

91. According to the testimony of Commissioner Campbell, Attorney Ferleger of Philadelphia, PA was contracted and retained privately by the Department in July of 1993 to handle the JRC certification process. Commissioner Campbell testified that it was a departure from ordinary practice for private counsel to be retained in connection with a certification application.

92. Commissioner Campbell, in response to questioning by Attorney Yogman, attempted to justify the enormous legal resources devoted to the JRC certification process by DMR. The Department had many attorneys from its own legal staff from the A.G.’s office involved in this litigation.

93. Specifically, Commissioner Campbell testified that he was forced to have many lawyers “heavily involved,” because just prior to becoming Commissioner, he received a telephone call from Henry Clark from Eric MacLeish’s office to “warn me... not to do anything to JRC on Monday when I became Commissioner.” [23]

Footnote [23] Commissioner Campbell became Commissioner of DMR in July 1991.

94. The Court, however, heard testimony on rebuttal from Henry W. Clark, who is currently a partner in the law firm of McNamara & Clark, P.C.[24]

Footnote [24] Mr. Clark has a Masters of Divinity degree from Harvard Divinity School and is an ordained minister in the United Church of Christ. Mr. Clark also has a Doctorate from Boston College in Religion and Society with a concentration in ethics. He has taught ethics at Boston College. Prior to becoming a partner at McNamara & Clark, Mr. Clark worked at the law firm of Eckert Seamans Cherin & Mellott for four years, and prior to that at Fine & Ambrogne. JRC has been a client of all three law firms.

95. Mr. Clark testified he recalled a conversation that took place in the spring or early summer of 1991. He initiated that call to Philip Campbell to congratulate him on being named the Commissioner of DMR. Mr. Clark and Philip Campbell had been colleagues for five or six years in the private sector when Mr. Clark was the Director of MAAPS, the Massachusetts Association of Approved Private Schools, and Mr. Campbell was the Executive Director of MARC, the Massachusetts Association of Retarded Citizens.

96. Commissioner Campbell responded to the offer of congratulations by saying that now that Mr. Clark was an attorney and Mr. Campbell was going to be Commissioner, “We can’t talk to each other anymore”. The conversation then abruptly ended. Mr. Clark remembered this conversation very distinctly because he was stunned by the Commissioner’s response.

97. Mr. Clark was a credible witness. Commissioner Campbell’s testimony on this subject was blatantly false, designed to offer justification, albiet untruthful, for the enormous legal expenses DMR has incurred in its unlawful pursuit of JRC.

98. On August 27, 1993, JRC delivered a written response to DMR’s August 6 Letter. The response was a point by point refutation of the false allegations contained in the Commissioner’s August 6 Letter. It was accompanied by three cubic feet of significant documentation, which rebutted most of the factual allegations of the Commissioner.

99. Instead of retracting the allegations contained in the August 6 Letter, Commissioner Campbell sent another letter to JRC on August 31, 1993, which was also subsequently sent to JRC’s funding agencies upon which it depends for its referrals. The August 31 letter also contained false information concerning JRC.

100. The letter of August 31, 1993 found that JRC was “in violation of DMR regulations,” but stated the willingness of the Commissioner “to give JRC further opportunity to provide further information.” (Exhibit 91, p. 2).

101. Commissioner Campbell stated that the field review has learned from a source “other than JRC” that there were problems with misfirings of the GED device. This statement was intended to imply that JRC was being less than forthcoming concerning the issue of misfires of the GED device.

102. The statement of Commissioner Campbell concerning misfires was false. [25]

Footnote [25] Commissioner Campbell testified that it was his understanding that the source of this information was General Counsel Murdock. Yet, Attorney Casey testified that he remembered reviewing information provided by JRC on the issue of misfires and had a conversation about misfires the first time he visited JRC in 1991. Moreover, the issue of these infrequent “misfires” had been the subject of evidentiary hearings and expert testimony in substituted judgment court proceedings in which the Department had elected not to participate. (See findings of March 12, 1992; Exhibit 240).

103. The August 31, 1993 letter also set forth a number of further conditions that JRC was required to meet in order to receive interim certification.

104. Condition 1 restricted JRC to the use of procedures which were actually in use as of August 27, 1993. This directly contradicted orders of this Court which authorized JRC to utilize procedures other than those which were specifically in use on August 27, 1993. Instead of seeking to modify outstanding court orders, the Commissioner departed from the established course of practice (embodied in Exhibit 15, ¶14) and simply administratively overruled outstanding orders of this Court. It was also a direct violation of the Settlement Agreement in which decisions on treatment were to be made only in the Substituted Judgment Proceedings in the Court.

105. Commissioner Campbell was aware on August 31 that JRC was authorized by this Court to utilize procedures which it might not be using on any particular date. These orders have been entered after careful consideration and soley for the reason that a number of JRC students can suddenly engage in life-threatening behavior which required a varied “menu” of authorized treatment modalities.

106. The letter of August 31, 1993 also ordered JRC to comply with all DMR regulations regarding the use of mechanical restraints and other devices. (Exhibit 91, p. 6). In footnote 6 of this letter, Commissioner Campbell stated that mechanical restraint which is part of Court-approved behavior modification plan is not considered “prohibited restraint”.

107. There was no evidence adduced in this case that JRC had utilized mechanical restraint without a substituted judgment order or in circumstances other than those recognized as appropriate in a memo of the Department’s General Counsel. (Exhibit 15).

108. The August 31, 1993 Letter also required JRC to “cooperate fully” with an “independent” performance and program review of JRC to be arranged by DMR. This program review will be discussed in more detail infra.

109. Condition 10 of the August 31 letter required JRC to notify “all funding sources” that there must be in place within 60 days an emergency plan designed to address unexpected medical, personal, or programmatic situations which JRC deems beyond the capacity of JRC to address. The condition went on to state that the plans “must provide evidence of the funding agency’s ability to immediately provide all needed services for such clients so as to insure that the client is not substantially endangered.” Condition 10 could only be expected to produce alarm in funding agencies and panic in parents of students at JRC.

110. Commissioner Campbell testified falsely that this condition was not intended to alarm funding agencies, but was based upon prior situations where JRC had unexpectedly discharged students who then became the responsibility of the Department. When pressed by JRC counsel, the Commissioner could only identify a situation involving discharge which allegedly occurred in 1991. Moreover, the Commissioner acknowledged that other providers had unexpectedly terminated clients, and that no conditions similar to this had ever been imposed in the case of other providers.

111. This Court finds that Commissioner Campbell gave false testimony when he asserted that Condition 10 was a legitimate exercise of regulatory authority in response to JRC’s unexpected discharge of a client back in 1991. This Condition was purposely designed to alarm funding agencies and obstruct JRC’s intake of new clients. No funding agency would ever place a client in a private program for services when that provider was being compelled at the same time to develop plans for emergency placements.

112. On the last day of the trial before the Court, July 14th, 1995. Commissioner Campbell was confronted with a document (Exhibit 293) which had been previously redacted by the Department when it was first introduced in evidence. In this document (which was the September 7, 1993, workplan from the Tuesday Morning meetings discussed in more detail infra.), it was made evident that Condition 10 was, in fact, part of a plan to place JRC into receivership or to close JRC down. Even when presented with this document, Commissioner Campbell declined to retract this obviously false testimony. The Commissioner’s testimony under oath concerning the purpose of this condition and whether or not it was designed to alarm funding agencies about the closure of JRC was categorically false and inconsistent with the stated purpose of the letter, as reflected in Exhibit 293.

113. On September 7, 1993, JRC again requested mediation concerning the August 31 letter. On September 10, 1993, the Court Monitor wrote to all parties requesting their participation.

114. On September 16, 1993, DMR agreed to meet “without waiver to our argument that the issues you have raised are not subject to mediation under the Settlement Agreement.” DMR still had not disclosed that it was now taking the position that it was not in fact a party to the Settlement Agreement.

115. At the September 20, 1993 mediation meeting held by the Court Monitor, BRI and DMR reached an agreement whereby JRC would not have to comply with Condition 10, but could take up the plan for emergency placement of students at the regularly scheduled “Individual Service Plan” (ISP) meetings which are held on a periodic basis. This agreement was confirmed in a letter from Douglas Wilkins to JRC dated September 21, 1993. Once again the Commissioner testified inconsistently as to whether or not he had authorized this agreement. [26]

Footnote [26] At trial Commissioner Campbell testified that he approved the agreement in advance of the time that it was reached. (Tr. June 28, p. 163, 1. 23-164, 1.5). However, in his deposition he testified that he did not remember approving the agreement. (Tr. June 28, p. 164, 1. 6-165, 1. 12).

116. On September 24, 1993 Commissioner Campbell mailed copies of the August 6 and August 31, 1993 letters to all of BRI funding agencies(Exhibit 105) after having advised counsel for JRC of his intention to do so only one day prior. The letter of August 31, 1993 contained Condition 10, the very requirement concerning emergency placements which JRC wished to avoid. Although JRC requested mediation with the Court Monitor before the Department mailed the letters out to JRC’s funding agencies, the Commissioner rejected the request. The Commissioner acted in total disregard for the pleas and concerns expressed by the parents of the students at JRC. [27].

Footnote [27] The court heard testimony of three parents during the course of these proceedings. The testimony of these parents was credible and compelling. There was dignity in each parent’s demeanor. Their testimony spoke eloquently to the best interest of their children, and thus stood in stark contrast to the testimony elicited from the Department.

117. On September 24, 1993, the same day Commissioner Campbell mailed the letters of August 6 and August 31 to all of JRC’s funding agencies(Exhibit 105), the Court Monitor reported to this Court that mediation under ¶B-2 of the Settlement Agreement had failed.

118. It was not customary practice to keep funding agencies advised of the certification process. Commissioner Campbell could not explain why it was important to send these letters out. Moreover, Commissioner Campbell could not offer an explanation as to why funding agencies were not advised in this mailing that Condition 10 had been modified. [28]

Footnote [28] The funding agencies were not advised of the change in Condition 10 until a communication of October 4, 1993 (Exhibit 107) which referred to such change by attaching a letter of September 24, 1993. However, the damage had long been done.

This Court concludes that the mailing of September 24, 1993 was deliberately made in bad faith with the intent to interfere with JRC’s relationship with its funding agencies. The letters of August 6 and August 31, 1993 contained false information which the Commissioner and his staff knew was false of at the time of sending. [29]

Footnote [29] Commissioner Campbell conceded in his testimony that on the same date that he sent out an inaccurate letter to funding agencies that failed to include the agreement reached four days earlier, he sent a separate letter to BRI and assorted counsel that accurately set forth the true status of the agreements that had been reached. (See Exhibit 106; Tr. June 28, p. 169, 1. 20 - p. 170, 1. 3).

119. The August 6 (with Dr. Jansen’s letter attached) and August 31, 1993 letters were also sent to the parents of JRC’s students, allegedly to keep them informed of the status of JRC’s certification. However, Commissioner Campbell failed to include either of the earlier favorable certification team reports which might alleviate some of the concerns that the parents would have upon receiving the letters. These mailings were designed to alarm the parents, and were written in an effort to interfere with JRC’s relationship with the families. This Court therefore rejects Commissioner Campbell’s testimony that the purpose of this communication was to keep the parents informed.

120. On September 22, 1993, Commissioner Campbell filed an unsolicited “Report to the Court” concerning the “status of Behavior Research Institute, Inc.” The 28-page document purported to summarize in detail the basis for the Department’s actions as of that date, as well as JRC’s alleged violation of various regulations. This report sent by DMR, which was unsigned but was attached to a cover letter to this Court dated September 21, 1993 signed by General Counsel Murdock, contained blatant false statements and material omissions. The report was reviewed by Commissioner Campbell before it was submitted. This Court concludes that the report constituted a fraud upon the Court and was filed with the Court by DMR and its Counsel knowing it was false, for the express purpose of creating the false impression that the Department was exercising its regulatory duties.

121. Although the appendix filed with the report contained numerous reports of DMR concerning JRC going back as far as April 9, 1991, (including the August 6 and August 31, 1993 letters), Commissioner Campbell intentionally omitted the two critical certification reports of December 21, 1991 and July 15, 1993 which were relevant to the very issues before the Court at that time.

122. Commissioner Campbell cannot report to the Court concerning the subject matter of these two reports, yet fail to accurately describe their conclusions and recommendations. Yet, this is precisely what Commissioner Campbell did. No credible explanation was advanced by the Commissioner to explain this conduct and the false impression that is created on the Court.

123. Commissioner Campbell failed to include these reports because they would have contradicted his report to the Court. This action constitutes a serious interference with the administration of justice.

124. None of the numerous counsel associated with the case for DMR took any steps whatsoever to correct the false statements contained in the report to the Court. This Court is not referring to subtle issues of interpretation. Important material information in this report was false. It was incumbent upon all counsel in this case, including General Counsel Murdock, who provided the report to the Court, to bring the false information contained in this document to the attention of the Court.

125. This Court cannot accept that counsel was unaware of the false contents and material omissions of this document because the mistakes were so clear and obvious. The Court, therefore, also concludes that counsel in this case, including General Counsel Murdock, made misrepresentations to the Court and knowingly prepetrated a fraud on the Court.

126. After the August 6, 1993 letter, Commissioner Campbell announced he had appointed Gunnar Dybwad to the Human Rights Committee.

127. Commissioner Campbell made this appointment knowing that Gunnar Dybwad had a long-standing philosophical opposition to all aversive procedures and had been a long-standing foe of Dr. Matthew Israel, the Executive Director of JRC, and the JRC program.

128. While this Court recognizes the value of members of the Human Rights Committee with differing positions, the appointment of Gunnar Dybwad was calculated, together with other actions, to disrupt the operations of JRC.

129. In response to the appointment JRC, on October 8, 1993, requested mediation and the Department refused.

130. On September 24, 1993, Commissioner Campbell sent JRC another certification letter addressed to Dr. Israel, indicating that certification would be conditionally granted until December 15, 1993. (Exhibit 106).

131. In this letter, copies of which were sent to funding agencies, Commissioner Campbell announced that there were fourteen abuse investigations arising from complaints by former JRC staff, present JRC clients and/or their attorneys, and information presented by JRC to DPPC(The Disabled Persons Protection Committee). The letter characterized them as “quite serious on their face, and included claims that you personally(Dr. Israel) were involved in, or responsible for, abuse against specific JRC clients.” (Exhibit 106 at 1).

132. It is the normal practice of Commissioner Campbell and DMR not to reveal allegations of abuse to third parties without first having had them substantiated. This communication constituted a startling departure from the Department’s acknowledged practice with respect to abuse investigations.

133. While Commissioner Campbell conceded that the allegations of abuse against Dr. Israel personally were investigated and not substantiated, the Commissioner never sent out a letter advising funding agencies of Dr. Israel’s vindication but simply let the allegations stand.

134. In the letter Commissioner Campbell required that JRC provide him with reports of any incidents which had occurred since 1989 “except that any reports of deaths shall be provided by October 5, 1993.” (Emphasis not supplied). This was misleading and likely to produce the damaging impression that deaths had been occurring at JRC and that JRC and not been reporting them.

135. The September 24, 1993 letter also announced that an “independent” consulting firm- Rivendell - would be arriving at JRC to conduct a “independent” program review. As discussed infra, this review was in no way independent.

136. In August, 1993, Dr. Mary Cerreto, the Assistant Commissioner for Quality Assurance, Chief Clinician at DMR and a member of the Tuesday Morning Group, had recommended to the Commissioner that an independent program evaluation be done of JRC allegedly because prior evaluations which included the certification reports of 1991 and 1993 were not sufficient.

137. Dr. Cerreto’s testimony in this regard was not truthful since she acknowledged that she had not even seen the 1993 certification report until sometime in April of 1995.

138. Dr. Cerreto was in charge of selecting the new “independent” evaluation team. On August 30, 1993, she sent out a “request for a proposal” (“RFP”), soliciting bids for an independent program review on JRC.

139. The response to the RFP was due on September 9, 1993 which was only ten days after the RFP was issued and included a holiday weekend.

140. Under cross-examination, Dr. Cerreto testified that she knew of no other instance in which an RFP with a ten-day turnaround had been sent out by DMR, nor could she provide an explanation for the necessity of this short ten-day turnaround. Moreover, despite the fact that the policy in the Commonwealth is to encourage the widest possible response to an RFP, Dr. Cerreto sent the RFP to only a select group of recipients. Dr. Cerreto’s RFP process was inconsistent with Commonwealth policy.

141. Although Dr. Cerreto received letters regarding the short turnaround time, complaining that there was insufficient time to respond, she did nothing to expand the deadline.

142. Given the short time to respond to the RFP, only two bids were received, Rivendell and Fidura & Associates. Fidura & Associates’ bid was about 40% less than Rivendell($19,000 vs $33,000), but Fidura & Associates restricted the use of any evaluation it did to the certification process. This restriction was significant because DMR was looking for a bidder who had “experience with the strigencies of Court reporting and testimony.”

143. When the two bids were received, Dr. Cerreto distributed a memorandum to various Department employees indicating that Rivendell was her preferred choice, but requested input from the others by September 27, 1993. [30]

Footnote [30] Dr. Cerreto provided inconsistent sworn testimony with respect to the responses to this Memorandum. At her deposition, Dr. Cerreto testified that she only received two responses both of which were unanimous in favor of Rivendell. Once again, that testimony contradicts her trial testimony. The documentary evidence is clear that she received three responses including one from Debra Grywacz who did not vote in favor of Rivendell. The responses were not, as she testified at deposition, unanimous. (Tr., July 12, pp. 14,15).

144. In response to a request from JRC dated October 8, 1993, Margaret Chow-Menzer, Deputy General Counsel of DMR, provided JRC with a document, dated October 14, 1993 (Exhibit 307) that she falsely represented to be the Rivendell response to the RFP. [31]

Footnote [31] Moreover, that document was attached to a fax from Angela Amado of Rivendell to Dr. Cerreto, stating, contrary to Dr. Cerreto’s sworn testimony, that the Rivendell response had in fact been revised at Dr. Cerreto’s request. (See Exhibit 307).

145. Although Dr. Cerreto testified that she never requested that Rivendell alter or modify its response to the RFP, the fax from Angela Amado of Rivendell revealed that the response had in fact been revised at Dr. Cerreto’s request. This fully shows that the process was far from independent since DMR was involved in the selection process.

146. Indeed, the actual response by Rivendell to the RFP, (Exhibit 310), was never disclosed to JRC until the discovery process. DMR attempted to conceal the actual response because the actual response contains several provisions which were later dropped, when Dr. Cerreto asked Angela Amado to revise the document. Among those provisions were: the cost of the evaluation, the fact that Hank Bersani, who was militantly opposed to the use of aversives, was one of the proposed evaluators and, most significantly, on the first full page of that document, a statement that says “The assembly of a sufficiently qualified team at such short notice is close to impossible.”

147. Despite the fact that Rivendell complained, like others, that they could not put together a sufficiently qualified team on such a short notice, and despite the fact that their bid was one and a half times higher than Fidura & Associates, Dr. Cerreto awarded Rivendell the contract.

148. The co-leader of the Rivendell team was a psychologist by the name of Richard S. Amado. Dr. Cerreto knew Dr. Amado prior to receiving the RFP response from Rivendell.

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.