by Matthew L. Israel
1971-1985: Beginnings, Philosophy and Early Growth
I studied psychology under the late B.F. Skinner as an undergraduate, as a graduate student, and as a post-doctoral fellow at Harvard University. I received a doctorate in psychology at Harvard in 1960. I was very impressed with Skinner’s work and accomplishments. As a result, I was confident that the basic behavioral principles and technologies that he had developed or refined could be fruitfully applied in the treatment of a wide variety of behavior disorders. Behavioral principles appeared to be extraordinarily successful in both explaining and managing behaviors.
My first opportunity after graduate school to apply these principles and techniques was in the 1960’s, during which time I founded a company in Cambridge, Massachusetts that wrote self-instructional materials for publishers and businesses and manufactured teaching machines. Another opportunity was in two behavioral communes that I started in 1966 and 1967. In one of these I employed behavioral principles to eliminate a three year old girl’s behavioral problems, changing her from what some considered to be extremely spoiled, demanding and annoying, into a charming presence in the house. In the late 1960’s I consulted to the Rhode Island Children’s Center where I developed a behavior modification program for neglected and dependent children in one of the homes at that Center. In 1970 the director of the Emma Pendleton Bradley Home for Children in Riverside, Rhode Island, invited me to establish its first unit for the treatment for autistic children.
In 1971 I started the Judge Rotenberg Educational Center (JRC) by offering behavioral treatment consultation in the homes of parents of autistic-like children. JRC’s first residential program was started in the fall of 1972, within a private home in Cranston, Rhode Island. The program at that time served two adolescent students. One was the schizophrenic child of the parents who lent us a wing of their home to use as the treatment center. From 1971 to 1994, the program was known as Behavior Research Institute. In 1994, we changed our name to the Judge Rotenberg Educational Center, to honor the memory of the judge (right) whose courageous decisions and actions (see below) helped to preserve our program from extinction at the hands of state licensing officials in the 1980’s.
From its inception in 1971 JRC’s basic plan was to apply, in a comprehensive and thoroughgoing manner, the then-newly emerging science and technologies of behavioral psychology to the education and treatment of severe behavior disorders. To use behaviorism as the foundation of treatment was a new approach to such treatment, which at that time was still heavily influenced by the use of pharmaceuticals and the psychoanalytical approach of Freud and his followers. A thoroughgoing and consistent behavioral approach to treatment was quite unusual at that time. The more common approaches at that time were psychoanalytic treatment, psychotropic drugs, normalization, educational approaches, milieu therapy, psychiatric counseling, play therapy, or eclectic, multidisciplinary approaches in which a combination of a little bit of several different approaches were used, with none predominating.
A thoroughgoing behavioral approach differs markedly from these traditional approaches in certain ways. Some of these differences, which are itemized below, have caused JRC to experience difficulties with licensing agencies from time to time.
This set of policies has always enabled JRC to provide unusually effective treatment. Ultimately, the parents and placement agencies are interested in is just that—effective treatment. As a result, during the period 1971 through 1985 JRC grew from 2 students to approximately 65 students. Our school and administrative offices were in Providence, Rhode Island during this period.
to 1975 JRC operated as a day school/treatment center. The program was
approved by both the Rhode Island Department of Education and was licensed
by the Rhode Island Department of Mental Health. In 1975 we opened a
residence for some of its students in Seekonk, Massachusetts. In succeeding
years we added other residences in Attleboro and Rehoboth, Massachusetts.
These residences were licensed as group residences by the Massachusetts
Office for Children (OFC).
1985-87 Failed Attempt by Office for Children to Close JRC
In 1985 a young man died at JRC while being restrained at one of our residences. The cause of death was ultimately determined to be natural causes related to his condition of tardive dyskinesia and not due to the restraint procedure that had been employed. Opponents of JRC seized on this death, however, to call for the closure of JRC. JRC’s opponents included officials of the National Society for Autistic Children and various other local advocacy groups, such as the Disabilities Law Center, Massachusetts Association for Retarded Citizens, Massachusetts Civil Liberties Association, etc. All of these agencies wrote letters to the Governor, urging him to close JRC. The governor of Massachusetts at that time was Michael Dukakis, who was preparing for his 1988 run for president.
In September 1985, the Massachusetts Office for Children (OFC) issued an order to JRC to close its program and closed JRC’s ability to take in any additional students. JRC’s parents organized in support of the program and brought suit against both OFC and JRC to prevent the closure. JRC also appealed the closure and countersued OFC. The matter was heard by an administrative law judge of the Department of Administrative Law, who ruled that the program could remain open, but curtailed JRC’s aversive treatment procedures. This caused an immediate and serious regression in the behaviors of many of JRC’s students. Some showed intense, problematic and dangerous behaviors and many staff members resigned due to the overwhelming task of managing intense behaviors without adequate treatment procedures. JRC appealed this decision of the Administrative Law judge to the courts and also fought numerous court battles with OFC over the legality of other actions that OFC took during that period.
While this litigation was taking place, in late 1985 and early 1986, JRC brought one of its seriously self-abusive, autistic students before the Bristol County Probate Court for a substituted judgment hearing that was held by Chief Judge Ernest Rotenberg. After hearing testimony on both sides of the issue, Judge Rotenberg determined: (1) that the student was incompetent to make her own medical treatment decisions; and (2) that the child, if competent, would have chosen treatment that included the use of the aversives that JRC had been employing, prior to the decision by the administrative judge. This substituted judgment hearing was the same type of hearing that was required in Massachusetts for individuals for whom agencies wished to employ psychotropic medication (or other intrusive medical procedures) and who were incompetent to make their own treatment decisions.
Armed with this determination, JRC resumed the use of aversives in this child’s treatment and the child, who had seriously regressed during the period when the aversives had been curtailed, recovered and resumed her treatment progress. JRC then began to bring each of the other students who needed aversives in his/her treatment before Judge Rotenberg for substituted judgment determinations.
When a proposal to employ aversives is examined in the context of an individual case, as is done in the substituted judgment proceedings, the matter always looks quite different from how it looks when aversives in general are discussed as a general philosophical matter. OFC objected, however, taking the position that Judge Rotenberg had no authority to permit the use of such aversives if OFC had banned their use.
At this point Judge Rotenberg was temporarily given the powers of a Superior Court judge, and all of the various legal battles that were ongoing between OFC and JRC (then known as the Behavior Research Institute, or BRI), and between the JRC parents and OFC, were consolidated in one legal action in front of Judge Rotenberg. At a critical point Judge Rotenberg enjoined OFC from taking any adverse licensing action against JRC and ruled that the further legal expenses of the parents and of JRC, which were now exceeding what either could bear, should be born by OFC. Judge Rotenberg also made findings that the OFC Director had been acting in bad faith in certain of her licensing actions. These included inviting a national panel to review JRC that she knew was biased against the use of aversives. OFC, through its counsel the Massachusetts Attorney General’s Office, appealed Judge Rotenberg’s findings and orders to a Single Justice of the Massachusetts Appeals Court. Judge Rotenberg was quickly affirmed.
Shortly after that the parties (OFC, JRC Parents, and JRC) reached a settlement that was embodied in a Settlement Agreement in 1986 that Judge Rotenberg approved in early 1987 and adopted as an order of the Court. The most critical provisions of this Settlement Agreement are these:
During 1987, the attorney who had headed OFC during the OFC-JRC controversy was removed or transferred from that office and the agency was given a new head.
In 1987 DMH formally accepted its obligations under the Settlement Agreement. Later in 1987 or in 1988, DMH adopted new regulations on the use of aversives which paralleled its obligations under the Settlement Agreement. During the process of developing these regulations, DMH invited input and consultation from JRC. The new regulations categorized aversives into three levels and required that the most severe aversives (Level 3 Aversives) could only be employed if the petitioner obtained court authorization through the same substituted judgment process that JRC was required to use under the Settlement Agreement. The regulations also created a certification process in which certain organizations would be certified on a program wide basis to be allowed to employ Level 3 aversives. This certification must be renewed every two years.
In 1986 or 1987 some anti-aversives advocates introduced a bill in the Massachusetts legislature that would ban the use of aversive procedures. Although the bill would ban all aversive procedures, it was clear that it was aimed at JRC in particular. In 1987 the bill passed its initial committee and even passed the entire House of Representatives. Fortunately, because Michael Dukakis was running for president in 1988, the legislative session was abbreviated to help him spend more time on the campaign trail and the bill was not taken up by the Massachusetts Senate. The same bill has been introduced every few years since then and each time JRC staff, parents and students have lobbied vigorously to kept he bill from passing. Fortunately we have been increasingly successful in doing this each time the bill has been introduced.
late 80’s or early 90’s DMH spun off its mental retardation services as a
separate agency known as the Department of Mental Retardation (DMR). After
its creation, DMR adopted DMH’s regulations on the use of aversives, and
sought and obtained from the court an amendment of the
to add DMR as a party to that agreement.
1987-1993 Peace, Calm and Growth under DMR
From 1987 to 1993 JRC functioned very well under the new DMR licensing authorities and resumed its growth. JRC’s population, which had shrunk to about 39 students during the JRC/OFC controversy, rose to 65 by 1993. During these years we introduced a few new features to our program:
In approximately 1992, DMR received a new Commissioner named Philip Campbell. Commissioner Campbell had previously been the head of the Massachusetts Association for Retarded Children (MARC). Mr. Campbell appears to have had a strong personal and philosophical opposition to the use of aversives and to the existence of JRC. While serving as the head of MARC, he had testified in favor a bill to ban the use of aversives in Massachusetts.
In 1993, Judge Ernest Rotenberg died. The Honorable Elizabeth LaStaiti succeeded him as Chief Judge of the Bristol County Probate Court. Shortly after that, DMR began a comprehensive campaign to close JRC and to interfere with JRC’s ability to obtain referrals from other states. The details of this campaign are to be found in a set of findings that Judge LaStaiti eventually made in 1995 and which may be found at here. In carrying out his campaign against JRC, Commissioner Campbell failed to abide by the provisions of the 1987 Settlement Agreement. This included a failure to act in good faith and a failure to use the mediation process to settle his disputes with JRC.
Once again, the parents of the JRC students organized themselves and came to JRC’s defense by bringing suit against DMR. In 1995 the matter came to a head in a public court trial at the Bristol County Probate Court in front of Chief Judge LaStaiti. During the course of this trial, which lasted for three weeks, Dr. Daignault resigned his role as Mediator, but retained his role as Monitor.
The Settlement Agreement had been intended to avoid further court battles between JRC and its licensing agency. Because the Settlement Agreement had failed to accomplish this, the court now imposed an unusual remedy. The court placed DMR’s licensing actions with respect to JRC in receivership. Eventually, retired judge Lawrence Perera was appointed to serve as Receiver. Mr. Perera was also appointed to serve as the mediator under the Settlement Agreement after he has completed his duties as Receiver. DMR appealed Judge LaStaiti’s decision.
In 1996 JRC moved its administrative offices and school building from Providence, Rhode Island to Canton, Massachusetts. JRC’s educational program continued to be approved by the Massachusetts Department of Education.
In 1997, Judge LaStaiti’s decision in the lawsuit between JRC and DMR was considered by Massachusetts’ highest court. The Massachusetts Supreme Judicial Court supported Judge LaStaiti’s decision. Shortly after receiving a copy of the decision of the Court, Governor Weld asked for and received the resignation of Commissioner Campbell. Gerald Morrissey, who had been the Deputy DMR Commissioner at that time, was then appointed to be new DMR Commissioner.
From 1997 and continuing to this date, JRC experienced another period of calm in its relationship with its licensing agency (DMR), which was now overseen by the Receiver. In 1996 JRC had moved its administrative offices and school building from Providence, Rhode Island to Canton, Massachusetts. JRC’s educational program continued to be approved by the Massachusetts Department of Education which had already approved the program when it had been located in Rhode Island.
The receivership gave JRC a welcome protection from further attempts by licensing agencies to interfere with its treatment. As a result, the program thrived and grew in size.
JRC took advantage of the respite in litigation that the Receivership ensured by introducing a few new major features into its program:
In 1997, JRC opened a 6-bed respite services program that provides short-term (30-60 day) respite services to developmentally disabled clients of the Massachusetts Department of Mental Retardation.
In approximately 2002, JRC opened its day program, called Tomorrow. Currently this programs serves 3 students.
Beginning in approximately 2003, the Receiver began to return various functions to DMR and to wind down the Receivership. DMR indicated its desire to transfer the licensing of students under the age of 22 back to OFC, which was now called OCCS. JRC agreed, but only on condition that JRC’s treatment modalities be preserved and that OCCS be willing to accept the obligations of the Settlement Agreement that DMR had been subject to. OCCS was reluctant to accept this obligation.
The matter was resolved on September 4, 2003 at a meeting of the parties in front of Steve Hanna, the First Assistant Register of the Bristol County Probate Court. The parties agreed that DMR would delegate its licensing authority over JRC’s under-22 population to OCCS. This means that OCCS is acting as DMR’ agent in licensing JRC and that DMR and its agent OCCS must comply with all the terms of the Settlement Agreement. Judge LaStaiti issued an order effectuating this agreement.
As of June 30, 2005, OCCS ceased its existence as an agency under the Executive Office of Human Services (EOHHS). The licensing functions of OCCS have been transferred by statute to EOHHS. We are informed that as part of an interagency agreement, the Department of Early Education and Care (EEC), a new agency that started on July 1, 2005, has accepted all of the former OCCS licensing powers and obligations that had been transferred by statute to EOHHS, including EOHHS’ obligations to license JRC’s under-22 group homes acting as DMR’s agent.
JRC’s educational program continues to be approved by the Massachusetts Department of Education. At the present time all of JRC’s residences are currently licensed by the Massachusetts Department of Mental Retardation (DMR). Currently, JRC is working with DMR and the licensing officials of the former Office of Child Care Services (OCCS) to try to separate out the under 22-years-old population of students at JRC and to have the residences that house those students licensed by EEC, the new agency that has taken over the licensing duties previously carried out by OCCS.
Today, JRC serves over 230 students
and adults from many states. These individuals live in
37 apartments, town houses and homes which JRC operates in Canton and
neighboring communities. All attend JRC's day school at its Canton facility
each day. The program is staffed with approximately 900 employees.
 Michael Dukakis had been a friend of mine at Brookline High School. Each fall afternoon we used to run side-by-side as we practiced our skills on the cross country running team. My father had contributed to his political campaigns, my father and I had attended one of his fund-raisers, and my attorney at the time had even been an advance man for him during those campaigns. When OFC ordered us to close, I asked to meet with Governor Dukakis, whose executive agency had ordered JRC to close. He refused to meet with me on grounds that the matter was in litigation and did not even show the courtesy of sending a message of explanation.
 Sometime during the 1990’s, the Office for Children changed its name to the Office for Child Care Services (OCCS). On June 30, 2005, OCCS ended its existence and its licensing and other functions were embodied in a new agency known as Early Education and Care (EEC).
 The intensity of this campaign is reflected in the following three of Judge LaStaiti’s Findings of Fact: