For many years, Representative Carol Donovan, on behalf of advocates for people with disabilities, has filed legislation in the Massachusetts Legislature to prohibit the use of painful aversive procedures. These bills seek to outlaw painful behavioral modification including electric shocks as methods of "treating" people with disabilities.

Most recently the legislation has taken in the form of three short bills, H. 1108, 1109 and 1110, all of which amend Section 16 of Chapter 6A (which describes agencies within the state Executive Office of Health and Human Services).

In March 2004, Human Services & Elder Affairs Committee Chairman Antonio Cabral rewrote H. 1108, H. 1109, and H.1110 (renamed H. 4612). This first draft of H. 4612 would have allowed for the use of painful aversives on people with disabilities for the purpose of changing behavior pursuant to a court order. Such an order could be obtained if a person was found to pose a physical danger to him/herself or others. The bill would have allowed for judicial authorization for the use of aversives for periods of up to one year with the possibility of renewal. While the Chairman’s intention was to limit the use of aversives, the Coalition for Legal Rights of People with Disabilities (CLRD) was concerned that the legislation would not effectively limit the practice.

In March 2004, H. 4612 was reported out of the Human Services & Elderly Affairs Committee and sent to the Committee on Steering Policy, and Scheduling. Advocates protested and, by April 1st, the bill was returned to Human Services for rewriting.

Shortly thereafter, Chairman Cabral circulated a redraft of H. 4612. The redraft would have modified both Chapter 19 (Department of Mental Health (DMH)) and 19B (Department of Mental Retardation (DMR)) of the Mass. General Laws with identical language. The bill would have prohibited the use, on persons under the care and custody of those agencies, of physical contacts or punishments that caused physical pain with certain exceptions. Such an exception would be possible if a court, after a hearing, found that the person was a physical danger to him or her self or others. The bill included a balancing test and allowed for reauthorization of a behavior plan every 12 months.

As CLRD had written to members of the Human Services Committee in early April asking them to oppose H. 4612, Chairman Cabral invited CLRD members to meet with him and other Human Service Committee members regarding this legislation. Ultimately, CLRD members met three times with Chairman Cabral, aide Eric Boles, Committee Chief of Staff, Mark Merante, Rep. John Scibak, and Carla Beaudoin, Legislative Aide for Rep. Carol Donovan. Representatives Mary Grant, David Sullivan, Anne Paulsen, and Carol Donovan, as well as Carol Malone, Policy Director for Human Services Issues for Sen. Susan Tucker, also were present at one or more of the meetings.

During our discussions, Chairman Cabral explained that his goal was to craft a compromise bill that would largely limit the use of painful aversives and leave only a small exception for their use when all other treatment measures had failed. Committee members present were generally opposed to the use of painful aversives but some were wary of fully banning them.

During the meeting, we discussed a range of possible measures that might serve to restrict the use of aversives including: the requirement of a peer review board (as opposed to a judge) to approve of any use of aversive treatment; the requirement of elaborate credentials of those individuals that are authorized to administer aversive treatment; the requirement that users of aversive treatment meet certain outcome measures; and an outright ban on contingent shock.

Between the first and second meeting, CLRD members met to consider whether to support compromise legislation. That group ultimately concluded that CLRD should not support compromise legislation and instead reaffirmed its support for Representative Donovan’s original legislation.

In our second and third meetings with Committee members, we presented this view. We also supplied the Committee staff with the text of laws in other states that ban or limit the use of aversives and suggested that Massachusetts law should be as strong as the best of these statutes.

Representative Donovan’s legislation will be sent to a study this year and she is retiring from the Legislature this session. Despite these setbacks, CLRD members feel new energy in the disability community and in the Legislature to tackle the aversives issue. CLRD is working to find a new legislator to sponsor our legislation. We also look forward to continuing our work with the Committee.

CLRD thanks Representative Donovan for her tenacious dedication to the anti-aversive cause and Chairman Cabral for spending much time and attention on this legislation this spring.

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