Saturday, February 16, 2013

Patrick fights Rotenberg shock therapy decree

By Chelsea Conaboy

The Patrick administration filed a motion Thursday challenging a court decree that has allowed one Massachusetts school to continue for decades the controversial practice of using electric shocks to control children and adults who have developmental dis­orders or other special needs.

While some families and others connected with the Judge Rotenberg Center in Canton argue that the skin-shock procedure is necessary to treat people with the most severe conditions, others say it is tantamount to torture. Disability rights advocates and some former patients have worked for years to shut down the ­center.

The state’s motion comes two months after federal health officials said they would stop paying for treatment at Rotenberg. If approved, it could mark the beginning of the end of that decades-long debate.

At issue is a 1987 settlement between the center and the Commonwealth that has placed the facility somewhat outside the reach of other state laws. The agreement was the ­result of a lawsuit in which the center, then called the Behavior Research ­Institute, challenged a state decision to suspend its license.

The two sides agreed at the time that the facility would be permitted to provide “aversive” interventions, which later included the electric shocks, but the court would be responsible for reviewing individual patients’ treatment plans. As a gesture of gratitude, the center was renamed for the judge who approved the decree.

‘Our goal is to ensure that all individuals in the Commonwealth receive safe treatments.’

Now, the state is arguing that the settlement is outdated. There is “overwhelming professional consensus” ­today that the shocks, meant to deliver jolts of pain or discomfort at the command of staff members to discourage particular behaviors, are inappropriate and outside the standards of care, the motion says.

“Our goal is to ensure that all individuals in the Commonwealth receive safe treatments, in line with best practices in the medical field,” Alec Loftus, a spokesman for the state Executive Office of Health and Human Services, said in an e-mail. “We are optimistic that the court will rule in our favor.”

Michael Flammia, an attorney for the Rotenberg Center, said the state has no basis for its argument.

“There has been no significant change in the facts or the law or the state of scientific evidence,” he said. “They just want to ban aversives.”

One-third of about 240 people who live at the residential facility now receive shock therapy. Flammia said the treatment is used in place of drug cocktails to stop people from attack­ing themselves or others.

It is not clear how those residents would be affected in the short term if the state’s motion is approved, but such a decision would give the state more flexibility to regulate Rotenberg’s operations, including taking its use of shock treatment into ­account during a licensure ­review or other regulatory proceedings.

Scrutiny of operations at the center, which brought in $55 million in revenue for the year ending June 2011, has grown in recent years. Founder ­Matthew Israel stepped down from his role as executive director in 2011 under agreement with the state to avoid prosecution for his alleged involvement in destroying tapes that showed a 2007 incident in which two students were wrongfully subjected to shocks after a prank phone call.

The state released new rules in October 2011 prohibiting the facility from punishing any new enrollees with the shocks, though Flammia said the new provisions breach the 1987 court agreement.

The state’s latest action follows steps by two federal agencies to crack down on the ­Rotenberg Center’s activities.

The Centers for Medicare & Medicaid Services sent a letter to the state Executive Office of Health and Human Services in December saying it would no longer allow federal Medicaid money to be used for anyone who lives at a facility that ­employs electric shock interventions, even if that person is not receiving the treatment themselves.

The state has begun notifying individuals living at the center and their families of the change, that they must move to another facility or unenroll from the state benefits program. The change takes effect this spring.

The US Food and Drug ­Administration also warned the center that variations on a ­device it uses to deliver the shocks were not approved for medical use. The device, created by the center and used there for more than 20 years, “is ­approved by the Massachusetts courts as part of behavioral treatment plans,” according to a Rotenberg statement.

The action by state leaders on Thursday to challenge the settlement agreement took longer than many would have liked, said Leo Sarkissian, executive director of the Arc of Massa­chusetts, an advocacy group for individuals with ­intellectual and developmental disabilities. But, he said, “at the end of the day, we’re happy they’re moving ahead.”

State Senator Brian Joyce, a Milton Democrat and a longtime Rotenberg opponent whose district includes Canton, praised the governor’s “thoughtful and deliberate” ­approach to the issue.

“An awful lot of good people through the years have fought this barbaric practice,” he said. The motion, he said, was a big step.