GEORGE H. AND IRENE L. WALKER HOME FOR CHILDREN, INC. vs. TOWN OF FRANKLIN & another. [Note 1]

GREANEY, J. We transferred this case from the Appeals Court on our own motion to resolve a dispute between the defendants, the towns of Franklin and Milford, over the payment of the expenses of special education programs for two boys. The programs have been provided under G. L. c. 71B, inserted by St. 1972, c. 766, the State's law providing for special education programs for children in need of such services. A judge of the Superior Court decided, on cross motions for summary judgment filed by the parties, that the Department

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of Education (department) had the power to adopt, and properly had applied, a regulation which required Franklin, where the boys' father resided, to pay one-half of the cost of their special education programs. We conclude that the department's decision cannot be reconciled with G. L. c. 71B, Sections 3 and 5, the governing statute. Accordingly, we vacate the judgment entered in the Superior Court and order the entry of a new judgment.

The material facts are not in dispute. John and James Doe (fictitious names) are minors who the school committee of Milford has determined are in need of special education programs in a residential setting. The boys' parents are divorced. Their mother, who was awarded physical custody of them, resides in Milford. Their father, prior to his death in June, 1991, was a resident of Franklin. Although the boys visited their father in Franklin, neither of them ever lived or attended school there.

Initially, Milford paid for John's special education program at the George H. and Irene L. Walker Home for Children, Inc. (Walker School), the plaintiff in this case. When the Milford school committee determined that James also needed a special education program in a residential setting, [Note 2] the town inquired about the father's residence. On discovering that the boys' father lived in Franklin, Milford requested that Franklin assume one-half of the cost [Note 3] of the special education programs provided to John and James. Franklin refused to assume this responsibility without a written determination

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of financial responsibility from the department. Milford sought such a determination, and the department responded that, under 603 Code Mass. Regs. Section 28, par. 202.1 (c) (1986), [Note 4] Franklin was responsible for one-half of the cost of the special education program of each child. The Franklin school committee voted not to accept responsibility for these costs, and the matter proceeded to litigation. [Note 5] Judgment was entered in favor of the Walker School on its claims against Franklin, and for Milford on its cross claim against Franklin.

At issue is whether the department properly can require that part of the cost of educating a special needs child be paid by a municipality where the child does not reside because one of the child's divorced parents happens to live there. Franklin contends that, in G. L. c. 71B, the Legislature

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only delegated to the department the power to define by regulation programs for students with special needs. Franklin reasons that the department's regulatory power does not extend to the assignment of fiscal responsibility for the provision of special education programs, except where that power has been conferred explicitly. It is also argued that the department's division of fiscal responsibility between municipalities conflicts with statutory provisions that allocate fiscal responsibility for a special education program based on the residence of the child participating in the program. We reject the broad contention that the department's power does not encompass the adoption of regulations which may have the practical effect of assigning fiscal responsibility for the provision of special education programs. However, we conclude that a regulation like par. 202.1 (c), which permits the assignment of fiscal responsibility to a municipality where a child in a special education program clearly does not reside, conflicts with the governing provisions of G. L. c. 71B. [Note 6]

General Laws c. 71B "requires every city, town or school district: (1) to identify the school age children residing in that district who have special needs; (2) to diagnose and evaluate the educational needs of such children; (3) to propose a special education program to meet those needs; and (4) to provide or to arrange for the provision of such special education programs." Northbridge v. Natick, 394 Mass. 70, 72 (1985). The statute assigns to the department, in conjunction with the departments of mental health, mental retardation, public health and social services, the responsibility to adopt regulations regarding services and programs for children with special education needs. See G. L. c. 71B, Sections 2, 3, 10, and 12 (1992 ed.).

Section 3 of G. L. c. 71B provides, in relevant part: "In accordance with the regulations, guidelines and directives of the department issued jointly with the departments of mental health, mental retardation and public health and with the assistance

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of the department, the school committee of every city, town or school district shall identify the school age children residing therein who have special needs . . . [and] provide or arrange for the provision of [a] special education program [for such children]" (emphasis added). Section 5 of G. L. c. 71B assigns to the school committee which "provides or arranges for the provision of special education [to a child] pursuant to the provisions of section three" the responsibility to "pay for such special education personnel, materials and equipment, tuition, room and board, transportation, rent and consultant services as are necessary for the provision of special education."

In Boston v. Board of Educ., 392 Mass. 788, 792-793 (1984), Sections 3 and 5 were construed as clearly imposing the burden of paying for a special education program on the municipality (or school district) where the child needing the program resides. [Note 7] It is not contended that John and James ever "resided," within the meaning of G. L. c. 71B, in Franklin. "`A person's domicil is usually the place where he has his home.' [Restatement (Second) of Conflict of Laws Section 11 comment a (1971).] `Home is the place where a person dwells and which is the center of his domestic, social and civil life.' Id. at Section 12." Dane v. Registrars of Voters of Concord, 374 Mass. 152, 161-162 (1978). Hershkoff v. Registrars of Voters of Worcester, 366 Mass. 570, 576 (1974). A person can have only one domicil. Dane v. Registrars of Voters of Concord, supra at 161. The domicil, or residence, of a minor child generally is the same as the domicil of the parent who has physical custody of the child. Gil v. Servizio, 375 Mass. 186, 189 (1978). See Teel v. Hamilton-Wenham Regional

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Sch. Dist., 13 Mass. App. Ct. 345, 348-349 (1982) (determining a father's domicil for purpose of resolving a dispute over where children could attend public school). The mother of John and James, who has physical custody of the boys, resides in Milford. The boys also are residents of Milford. [Note 8]

The Appeals Court has appropriately observed that the phrase "residing therein" in G. L. c. 71B, Section 3, "is not so obviously self-defining when considerations such as split families, guardianships, children living with foster parents, relatives or friends, and institutionalized children enter the picture." Board of Educ. v. School Comm. of Amesbury, 16 Mass. App. Ct. 508, 512 (1983). Under the terms of Section 3, the department has been given the authority to adopt regulations addressed to resolving the issue of residence in situations in which a child's legal residence may be in some doubt. See Massachusetts Hosp. Assoc. v. Department of Medical Sec., 412 Mass. 340, 342 (1992); Grocery Mfrs. of Am., Inc. v. Department of Pub. Health, 379 Mass. 70, 75 (1979). Because a school committee's fiscal responsibility for providing special education programs follows from the fact of a child's residence in a municipality under that school committee's jurisdiction, proper regulations addressing issues of residency also may have the practical effect of assigning fiscal responsibility. [Note 9] However, under G. L. c. 71B, the department's authority

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with respect to the assignment of fiscal responsibility is limited to the question of determining where a child resides. Board of Educ. v. School Comm. of Amesbury, supra at 516.

Paragraph 202.1 (c), as applied by the department to the facts of this case, is not based on a determination of the residence of John and James. Consequently, the department's decision is inconsistent with the provisions of Sections 3 and 5 of G. L. c. 71B. We conclude that the department exceeded its authority when it assigned responsibility to Franklin for the costs of the special education of two boys, who do not reside there. See Massachusetts Mun. Wholesale Elec. Co. v. Energy Facilities Siting Council, 411 Mass. 183, 194 (1991). Milford, where the boys do reside, has the responsibility for satisfying the requirements of G. L. c. 71B.

The judgment is vacated. The case is remanded to Superior Court for entry of an appropriate judgment for the Walker School against Milford only, and in favor of Franklin against Milford on Milford's cross claim.

So ordered.