Torture not Treatment - Disability Rights International

TORTURE NOT TREATMENT
to use positive supports, the US Department of Education has certified JRC as a school that can
receive federal funds. 164
The Americans with Disabilities Act (ADA) does provide protections against discrimination on
the basis of disability. And in 1975, Congress passed the ―Developmental Disabilities Assistance
and Bill of Rights Act‖ (DD Act) which states in part:
…The Federal Government and the States both have an obligation to ensure that
public funds are provided only to institutional programs, residential programs, and
other community programs, including educational programs in which individuals with
developmental disabilities participate, that… meet minimum standards relating to—
provision of care that is free of abuse, neglect, sexual and financial
exploitation, and violations of legal and human rights and that subjects
individuals with developmental disabilities to no greater risk of harm than
others in the general population… and prohibition of the use of such restraint and
seclusion as a punishment or as a substitute for a habilitation program… 165
However, in a class action suit filed in federal district court - the Pennhurst State School and
Hospital v. Halderman - on behalf of all Pennhurst School residents alleging inhuman and
dangerous conditions at the school, the US Supreme Court ruled that the DD Act did not create
any new legal rights or protections and the language of the DD Act was ―horatory not
mandatory.‖ 166
…the Act does no more than express a congressional preference for certain kinds of
treatment. – US Supreme Court
In theory, treatment that subject children with disabilities to harm could be struck down by the
courts as a violation of the DD Act and ADA. In practice, they have not done so.
Lack of protection under State Law
In the absence of federal law that would limit aversive treatment, states have the ability to use
and regulate aversives as they see fit. Massachusetts and New York have adopted laws and
regulations on aversive treatment, as have some of the other states that send children to JRC. As
described above, JRC moved from California to Rhode Island when California adopted
regulations that made it almost impossible to use aversives. Ultimately, federal law is needed to
ensure that the protections under international human rights law are implemented throughout the
country. Since JRC is based in Massachusetts, this analysis will focus on Massachusetts law.
The Massachusetts regulations from the Department of Developmental Services (DDS) create
protections that appear relevant, but they include exceptions that permit aversives essentially
without limitation as to intensity or duration. The general policy against aversives that pose a
―significant risk‖ are stated in the introduction to the regulation:
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