COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Wrentham Public Schools, Framingham Public Schools, Norwood Public Schools and, Mass. Dept. of Elementary and Secondary Education
BSEA # 08-1326
RULING ON NORWOOD’S MOTION TO DISMISS
A. INTRODUCTION
This dispute focuses solely on the question of which school district(s) bear responsibility for providing or paying for Student’s educational services.1 One or more of the following school districts may be responsible for Student’s special education during the time periods relevant to this dispute: Norwood Public Schools (Norwood), Framingham Public Schools (Framingham), and Wrentham Public Schools (Wrentham).2
This Ruling pertains to a particular part of the overall dispute – that is, whether Norwood has any responsibility for paying for the special education and related services provided to Student from August 1, 2005 through March 8, 2007. This aspect of the dispute is between Norwood and Framingham, as it is Framingham’s position that Norwood and Framingham are jointly responsible for Student’s special education services during this time period. No other party has taken a position on this issue.
Norwood filed a Motion to Dismiss , seeking a determination that it bears no responsibility for special education for Student from August 1, 2005 through March 8, 2007. Since there is no claim that Norwood bears responsibility for any other period of time, Norwood seeks dismissal as a party.
BSEA Rules and the Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure both provide that a Hearing Officer may allow a motion to dismiss if the moving party fails to state a claim upon which relief may be granted.3 Similarly, the federal courts have concluded that a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) may be allowed if the court finds “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”4
This Ruling is issued by the Bureau of Special Education Appeals (BSEA) pursuant to the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
B. FACTS
The following facts are not in dispute (except for one disputed fact, described in par. 11, that is not material). Exhibits cited below reference the exhibits attached to Framingham’s initial opposition to Norwood’s Motion to Dismiss .
1. By letter dated March 31, 2004, the Massachusetts Department of Elementary and Secondary Education (ESE)5 advised the Massachusetts Department of Social Services (DSS) and the Framingham and Norwood Public Schools that Framingham and Norwood were jointly responsible for Student’s special education. The letter indicated that this assignment of joint responsibility was based on ESE’s determination that Student’s mother resided in Framingham and Student’s father resided in Norwood. Exhibit 2.
2. As noted in the March 31, 2004 letter from ESE, at that time DSS had placed Student at Brandon Residential School. Exhibit 2.
3. Norwood, Framingham, and DSS then entered into an agreement entitled “Cost Share Agreement” relative to Student’s educational and non-educational services. The agreement appears to be a standard form, into which certain information has been hand-written. The document states that Norwood and Framingham agree to fund the education-related costs and DSS agrees to fund the non-education-related costs of Student’s placement at Brandon Residential. There is no term indicated on the agreement. The agreement is signed and dated by representatives of the three parties and is effective October 1, 2004. Exhibit 3.
4. On August 1, 2005, DSS moved Student to the Knight Children’s Center (Knight Center), and the three parties to the previous cost share agreement entered into a new cost share agreement, utilizing the same standard form as the previous agreement. The new cost share agreement stated that Norwood and Framingham agree to fund the education-related costs and DSS agrees to fund the non-education-related costs of Student’s placement at the Knight Center. As with the earlier agreement, there is no indicated term. The agreement is signed and dated by representatives of the three parties and is effective August 1, 2005. Exhibit 4.
5. ESE issued a subsequent assignment letter dated March 8, 2007, concluding that Norwood had no responsibility for Student’s education. ESE assigned responsibility to Framingham and Wrentham on the basis of Mother’s residence in these two towns and based upon Mother’s having “full custody of [Student] through the Dedham court.” Exhibit 5.
6. Wrentham and Framingham requested ESE to re-consider its March 8, 2007 assignment letter. In response, ESE issued what is entitled “Updated Assignment of School District Responsibility” dated January 31, 2008, which again concluded that Norwood had no responsibility for Student’s education. In this letter, ESE assigned responsibility to Framingham and Kingston on the basis of ESE’s updated understanding of Mother’s residence in these two towns and on the basis of Mother’s sole physical custody of her son. ESE explained: “Student’s parents, who have been divorced since November 2001, have joint legal custody and Mother has sole physical custody.” Exhibit 7.
7. Soon thereafter, ESE issued another assignment letter, also entitled “Updated Assignment of School District Responsibility” and also dated January 31, 2008, but labeled “Corrected February 8, 2008.” In this corrected assignment letter, ESE did not alter its conclusions regarding Framingham’s and Kingston’s responsibilities for Student’s education. Exhibit 8.
8. In response to ESE’s corrected assignment letter of February 8, 2008, Framingham’s attorney wrote to ESE’s attorney on March 19, 2008, requesting clarification as to the following questions: (1) what period of time was covered by the ESE assignment letter? and (2) if it is ESE’s position that the ESE letter affects the assignment of financial responsibility for any period of time prior to the date of the letter, is it ESE’s position that its assignment letter “negates” the cost share agreement between Framingham and Norwood dated August 1, 2005? Exhibit 9.
9. By letter of April 8, 2008, ESE’s attorney responded to Framingham’s attorney, stating in relevant part as follows:
Based on the fact that the student’s mother had sole physical custody immediately prior to the time that the Department of Social Services obtained custody of the student, it is [ESE’s] position that in accordance with subsections 28.10(3)(c) and 28.10(8)(c)5, Framingham should have been solely responsible for the costs of student’s special education program from the time he was placed at the Knight Children’s Center in August 2005. Framingham remains fiscally responsible until June 30, 2008 at which time Kingston shall assume fiscal responsibility. [ESE] respectfully declines to take a position as to whether the assignment negates the cost share agreement between Norwood and Framingham.
Exhibit 10.
10. Norwood paid for its share (pursuant to the cost share agreement of August 1, 2005) of the educational costs at the Knight Center for the period August 1, 2005 through June 30, 2006 (the end of the fiscal year). The Knight Center has reimbursed Norwood for these payments, apparently on the basis of the ESE assignment letters of January 31, 2008.
11. It is disputed whether Norwood paid educational costs at the Knight Center for the period July 1, 2006 to March 8, 2007 (when the ESE assignment letter first concluded that Norwood was not responsible). Norwood takes the position that it did not pay for any educational costs for this time period, but Framingham has produced a letter indicating that Norwood paid for half the tuition from July 1, 2006 to February 28, 2007. For purposes of this Ruling, I assume that Norwood paid for half of Student’s tuition during this time period. It is not disputed that to the extent that Norwood made payment for these costs, Norwood has been reimbursed.
C. DISCUSSION
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)6 and the Massachusetts special education statute (MGL c. 71B), and the regulations promulgated under those statutes.
In Walker Home for Children, Inc. v. Franklin (Walker) , the Massachusetts Supreme Judicial Court held that pursuant to MGL c. 71B, assignment of the responsible school district is determined on the basis of the student’s residence .7 The Court further noted that the student’s residence “generally is the same as the domicil [sic] of the parent who has physical custody of the child.”8
In City of Salem v. Bureau of Special Education Appeals ( Salem ), the Court further clarified this issue, stating that “ [w]hile the residence of a child is typically the same as that of the parent who has physical custody of the child . . . the phrase ‘residing therein’ in G.L. c. 71B, § 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.”9
Recognizing the need for further clarification, the Court stated that ESE “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.”10 The present dispute, where there is a “split famil[y]” presents such a situation, as noted in the above quote from Salem .
Through its regulations, ESE currently provides the following operative legal standard relevant to parents who live in different school districts :
If the student’s parents live in two different school districts, such school districts shall be jointly responsible for fulfilling the requirements of 603 CMR 28.00 except if the student actually resided with either parent immediately prior to going into a living situation described in 603 CMR 28.10(3) or (4) or the parents are divorced or separated and one parent has sole physical custody , then the school district where the student resided with the parent or the school district of the parent who has sole physical custody shall be responsible and shall remain responsible in the event the student goes into the care or custody of a state agency.11
Substantially the same regulatory standard has been in effect at all times relevant to this dispute.12
Pursuant to its regulatory authority to assign the responsible school district,13 ESE issued an assignment letter, dated March 31, 2004, based on ESE’s information at that time that Father was residing in Norwood and Mother was residing in Framingham. The letter assigned joint responsibility to Framingham and Norwood. Facts section of this Decision (Facts), par. 1. This assignment was in accord with the above-quoted regulatory standard–that is, the parents lived in two different school districts and therefore both school districts were jointly responsible. Neither party appealed ESE’s assignment.14
On April 14, 2004, ESE issued Administrative Advisory SPED 2004-4, entitled “School District Responsibility For Children in Special Education Day Schools Who Are Transferred to a Residential School by the Department of Social Services.” Within this Advisory, ESE provides the following guidance:
If DSS has made a clinical determination in accordance with DSS standards that the child should be placed in a residential school, DSS will share the residential school costs. School districts will be responsible for either 50% of the residential school tuition, or, in the alternative, the day portion of the special education residential school costs as determined by the Operational Services Division (OSD) of the Executive Office of Administration and Finance. … [Footnote omitted.]
A school district may not negotiate any other cost-share arrangements with DSS.
On August 1, 2005 when DSS placed Student in a residential program at the Knight Center, DSS, Framingham, and Norwood entered into a cost share agreement pursuant to which Framingham and Norwood agreed to jointly share responsibility for Student’s educational costs at the Knight Center. Facts, par. 4. The agreement implemented and complied with the most recent ESE assignment letter (dated March 31, 2004) and followed the guidance of the ESE Advisory SPED 2004-4 quoted above.
It is not disputed that at all times relevant to this dispute, Mother retained sole physical custody of Student, and at all relevant times, Mother did not reside in Norwood. It also is not disputed that as a result of these facts, the ESE assignment letter of March 31, 2004 erroneously assigned financial responsibility to Norwood. This is because both the Walker decision, discussed above, and the ESE regulations, also discussed above, assign sole responsibility to the parent with sole physical custody when the parents are separated or divorced.15 ESE’s error was not corrected until the ESE assignment letter of March 8, 2007. Facts, par. 5.
The question presented by the instant dispute is whether, under these circumstances, Norwood may now be found liable and be required to pay for one-half of Student’s education-related costs during the period August 1, 2005 through March 8, 2007 on the basis of the August 1, 2005 cost share agreement.
I first consider the question of whether the BSEA has jurisdiction to consider a cost share agreement. Norwood has taken the position that the BSEA lacks such jurisdiction.
The jurisdiction of the BSEA to hear appeals relative to ESE’s assignments of school district responsibility is created solely by (and therefore is limited to what is provided within) ESE regulations, which provide in relevant part as follows:
(9) Appeal of Assignment of School District Responsibility. The assigned district may appeal the Department’s assignment of responsibility to the Bureau of Special Education Appeals, subject to the following procedures: …
(f) The decision of the Bureau of Special Education Appeals shall be limited to a determination of the assigned school district and the effective date of such assignment.16
This grant of jurisdiction makes no reference to consideration of agreements, and the expertise of a special education hearing officer at the BSEA would not be expected to extend to contract law. Nevertheless, it seems self-evident that within the context of the instant dispute, it would be impossible for the BSEA to render a decision regarding ESE’s assignment of responsibility and to do so in accordance with relevant law without considering the implications of the cost share agreement relied upon by Framingham.17
Failure of the BSEA to consider the agreement would provide an incomplete adjudication of the parties’ claims, thereby requiring the parties to proceed to court to obtain a resolution of their dispute in the first instance. Clearly, this would frustrate the underlying purpose of the BSEA’s regulatory authority and responsibility to determine the responsible school district and the effective date of that responsibility. Since the cost share agreement is inextricably intertwined with a determination of school district responsibility, I find it necessary and appropriate to consider the implications of the agreement.18
For these reasons, I conclude that I may consider the cost share agreements between Norwood, Framingham, and DSS.
The August 1, 2005 cost share agreement appears, on its face, to be an agreement entered into for purpose of allocating educational and non-educational expenses among Norwood, Framingham, and DSS. Such an agreement between two school districts serves the useful purpose of allocating financial responsibility for a student’s education, thereby providing fiscal certainty to cities and towns and allowing them to plan (including to adopt budgets) in accordance with their anticipated financial obligations.
Nevertheless, I am persuaded that the August 1, 2005 cost share agreement should not be considered binding on Norwood and should therefore not be determinative of Norwood’s responsibilities relevant to Student’s education based upon the legal doctrine of mutual mistake.
The Massachusetts Supreme Judicial Court explained the doctrine of mutual mistake in its decision of LaFleur v. C.C. Pierce Co., Inc . ( LaFleur ) :
The legal principles underlying the doctrine of mutual mistake are well established. Where there has been a mistake between the parties as to the subject matter of a contract, there has been no “meeting of the minds,” and the contract is voidable at the election of the party adversely affected. The mistake must be shared by both parties, and must relate to an essential element of the agreement. The mistake must involve a fact capable of ascertainment at the time the contract was entered into, and not a mere expectation or opinion about future events. A contract will not be rescinded for mutual mistake where one party was aware at the time the contract was signed that he had limited knowledge as to essential facts, but nonetheless assumed the risk that circumstances would prove to be other than as expected. [Citations omitted.]19
Similarly, § 152 of the Restatement (Second) of Contracts (1981), which has generally been followed by Massachusetts courts,20 provides in relevant part as follows:
Where a mistake of both parties at the time a contract was made as to a basic assumption on which the contract was made has a material effect on the agreed exchange of performances, the contract is voidable by the adversely affected party unless he bears the risk of the mistake under the rule stated in § 154.
At the time that ESE issued its assignment letter of March 31, 2004, ESE did not know that Mother had sole physical custody of Student. Similarly, at the time that Norwood and Framingham entered into the August 1, 2005 cost share agreement for purposes of implementing ESE’s assignment letter, Norwood and Framingham did not know that Mother had sole physical custody of Student.21
This mistaken fact pertains to the essential element of the agreement. Had it been known that Mother had sole physical custody, ESE would have assigned no responsibility to Norwood because Mother never lived in Norwood. Consequently, Norwood would not have entered into a cost share agreement with Framingham because the purpose of the agreement, from Norwood’s and Framingham’s perspectives, was to implement the ESE assignment of responsibility.
The correct fact (that Mother had sole physical custody) could have been ascertained on August 1, 2005 through a review of court records relevant to Mother’s custody of Student, as became apparent when ESE issued its subsequent assignment letters.
For these reasons, I find that the August 1, 2005 cost share agreement is voidable by Norwood under the doctrine of mutual mistake.
Framingham disagrees. While conceding that the doctrine of mutual mistake is applicable to contract law in general, Framingham argues that the doctrine does not apply to the facts of the instant dispute for two reasons.
First, Framingham takes the position that although Norwood may have been mistaken as to Father’s legal status, his legal status was a matter of public record and therefore this fact was available to Norwood had it chosen to inquire. Therefore, Norwood was responsible for and must assume the risk of that mistake. In support of this position, Norwood cites to the language quoted above in the LaFleur decision: “A contract will not be rescinded for mutual mistake where one party was aware at the time the contract was signed that he had limited knowledge as to essential facts, but nonetheless assumed the risk that circumstances would prove to be other than as expected.”22
This principle of assumption of the risk, relied upon by Framingham, is sometimes referred to as “conscious ignorance” and is explained in Restatement (Second) of Contracts as follows:
Even though the mistaken party did not agree to bear the risk, he may have been aware when he made the contract that his knowledge with respect to the facts to which the mistake related was limited. If he was not only so aware that his knowledge was limited but undertook to perform in the face of that awareness, he bears the risk of the mistake. It is sometimes said in such a situation that, in a sense, there was not mistake but “conscious ignorance.”23
The principle of assumption of the risk would apply (and the doctrine of mutual mistake would therefore not apply) when the parties to an agreement are explicitly concerned about the uncertainty of an issue, the parties decide not to make a further inquiry that might clarify what is uncertain, and instead the parties enter into an agreement that resolves that issue. Under these circumstances, a court may appropriately assume that the parties intended the agreement to resolve the uncertainty, and the agreement should therefore not be voided if the issue turns out other than expected.24 This was not the case in the instant dispute.
Once ESE issued its assignment letter of March 31, 2004, Norwood and Framingham were required by ESE regulations to pay for Student’s education in accordance with ESE’s assignment.25 Norwood and Framingham entered into the August 1, 2005 cost share agreement not for the purpose of resolving an uncertainty as to which school districts were responsible for Student’s education-related expenses since this uncertainty was resolved for the parties through the ESE assignment letter. Instead, Norwood and Framingham entered into the agreement to implement ESE’s assignment of Norwood and Framingham as jointly responsible for Student’s education. For these reasons, I conclude that the principle of assumption of risk, relied upon by Framingham, does not apply to the facts of the present dispute.
Second, Framingham takes the position that the mistake was unilateral, rather than mutual. Framingham concedes that there was a mutual mistake as to whether Mother had sole physical custody, but asserts that this was not a material fact to its participation in the cost share agreement.26 This argument misses the point of the doctrine of mutual mistake. As is clear from the above-quoted language from Restatement (Second) of Contracts § 152, it is sufficient that the mistake was “as to a basic assumption on which the contract was made” and that the mistake had a “material effect on the agreed exchange of performances.” There can be little doubt that the parties’ mutual mistake regarding Mother’s sole physical custody of Student satisfies these criteria for the reasons explained above.
In addition, the cost share agreement may be unenforceable as contrary to public policy. As established in MGL c. 71B and as interpreted by the Massachusetts Supreme Judicial Court in Walker and Salem , it is public policy in Massachusetts that the responsible school district must be determined solely on the basis of the student’s residence .27 The Walker decision (discussed above) and ESE through its regulations (also discussed above) have further made clear that a student’s residence follows the parent who has physical custody of the student. The August 1, 2005 cost share agreement directly contravenes this public policy because, if enforced, the agreement would require Norwood to be jointly responsibility for Student’s education at a time when Framingham or Wrentham had sole responsibility based upon Mother’s having sole physical custody and residing in Framingham or Wrentham.28
Finally, I consider the appropriateness of looking back in time to correct a mistake made by ESE. Since July 1, 2005 , the ESE regulations have included the following language:
The school district(s) that had been responsible for providing special education to the student prior to assignment by the Department under 603 CMR 28.10(8)(d) may bill and shall be eligible to receive payment (using the procedures of 603 CMR 10.07 to calculate such costs, including transportation expenses where applicable), from the newly assigned district for the special education costs that were incurred during the period of time in which the newly assigned district should have been responsible.29
This language reflects a requirement that if a school district has been improperly assigned responsibility for a student, that school district is to be reimbursed by the school district that was actually responsible.30 In the present dispute, Norwood need not be reimbursed by Framingham because Norwood has already been reimbursed by the Knight Center. Facts, pars. 10, 11. Nevertheless, this regulatory requirement indicates that Norwood should not be penalized for ESE’s having incorrectly assigned it joint responsibility for Student’s education. It was ESE’s mistaken assignment letter that directly caused Norwood to enter into the cost share agreement upon which Framingham relies.
For these reasons, I find that the August 1, 2005 cost share agreement does not require Norwood to bear responsibility for Student’s education during the time period of August 1, 2005 through March 8, 2007. Since there is no allegation that Norwood bears responsibility for any other reason or for any other time period being considered in the instant dispute, Norwood will be dismissed from this proceeding.
D. ORDER
Norwood’s Motion to Dismiss is ALLOWED .
By the Hearing Officer,
_________________
William Crane
Date: July 24, 2008
1
Neither Student’s eligibility for special education nor the appropriateness of the special education services provided to him in the past or prospectively is in dispute.
2
Norwood is represented by Tim Norris. Framingham is represented by Philip Benjamin. Wrentham is represented by Kathleen Yaeger. Massachusetts Department of Elementary and Secondary Education is represented by Debra Comfort.
3
BSEA Rule 17B; 801 CMR 1.01(7)(g)3.
4
Judge v. City of Lowell , 160 F.3d 67, 72 (1st Cir. 1998), quoting Conley v. Gibson , 355 U.S. 41, 45-46 (1957).
5
At that time, ESE was known as the Department of Education but will be referred to as ESE throughout this Ruling.
6
20 USC 1400 et seq .
7
George H. & Irene L. Walker Home for Children, Inc. v. Franklin, 416 Mass. 291, 295, 621 N.E.2d 376 (1993).
8
Walker, 416 Mass. at 295.
9
City of Salem v. Bureau of Special Educ. Appeals of Dept. of Educ. , 444 Mass. 476, 482, 829 N.E.2d 641, 645 (2005) (internal quotations and citations omitted).
10
Id .
11
28.10(8)(c)(5)(emphasis supplied) (effective March 1, 2007).
12
See 28.10(8)(c)(5) (effective July 1, 2005); 603 CMR 28.03(4)(e) (effective January 2001).
13
603 CMR 28.10(8).
14
Assignments may be appealed to the BSEA pursuant to ESE regulations. 603 CMR 28.10(9). Previous ESE regulations similarly provided a right to appeal to the BSEA.
15
Walker, 416 Mass. at 295; 28.10(8)(c)5 (effective March 1, 2007); 28.10(8) (c)5 (effective July 1, 2005); 603 CMR 28.03(4)(e) (effective January 2001).
16
603 CMR 28.10(9).
17
In its opposition to Norwood’s motion to dismiss, Framingham made clear that it is relying exclusively on the argument that the cost share agreement is binding upon Norwood. Framingham also explained that it is not relying on principles of promissory estoppel, and I therefore do not consider this legal theory. See Framingham’s Supplemental Opposition to Norwood’s Motion to Dismiss, at page 4.
18
Cf. Kokkonen v. Guardian Life Insurance Co. of America , 511 U.S. 375, 378; 114 S. Ct. 1673; 128 L. Ed. 2d 391 (1994) (ancillary jurisdiction invoked “to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees”); In Re: Sutton Public Schools , BSEA # 07-7534 (July 1, 2008) (BSEA hearing officer should consider the implications of a relevant agreement between the parties in the context of an IDEA dispute) (collecting authorities).
19
LaFleur v. C.C. Pierce Co., Inc . , 398 Mass. 254, 257-58, 496 N.E.2d 827 ( 1986).
20
See John Beaudette, Inc. v. Sentry Ins. A Mut. Co . , 94 F.Supp.2d 77, 143-44 ( D.Mass. 1999) (collecting authorities).
21
In its Second Supplemental Opposition to Norwood’s Motion to Dismiss (page 3), Framingham stated that it was aware that Mother had physical custody, and that Mother and Father had joint legal custody. However, Framingham did not know whether Mother had sole physical custody or joint physical custody. In its Supplemental Memorandum in Support of its Motion to Dismiss (pages 3-4), Norwood stated that neither Norwood nor Framingham was aware that Father no longer had custody of Student.
22
LaFleur, 398 Mass. at 257-58.
23
Restatement (Second) of Contracts § 154, comment c (1981), quoted in Harbor Ins. Co. v. Stokes , 45 F.3d 499, 502 ( D.C. Cir. 1995) and Armco, Inc. v. Southern Rock, Inc. , 696 F.2d 410, 413 (5 th Cir. 1983).
24
The District of Columbia Circuit Court has provided useful guidance in Harbor Ins. Co. v. Stokes , 45 F.3d 499, 502 ( D.C. Cir. 1995) :
Every time parties enter a contract, they act with incomplete information. They make judgments about the desirability of acquiring (and waiting for) additional information, and of creating specific contractual provisions to handle particular eventualities. Where they have been explicitly concerned about an issue, but decide to press forward without further inquiry or explicit provision, it is reasonable to suppose that they intend the contract to dispose of the risk in question, i.e., to bar any reopening at the behest of the party who, it turns out, would have done better without the contract. Thus, in Thompson v. Lane, 226 Kan. 437, 601 P.2d 1105 (1979), the parties to a probate proceeding entered a settlement because although they “knew that a will had been written and executed[, t]hey were uncertain whether it had been revoked, destroyed, lost or merely mislaid.” 226 Kan. at 441, 601 P.2d at 1109. When the will later turned up and the party who would have done better under the will complained, the court held the parties to the settlement: “In order for a mistake to have legal significance and to constitute a basis for invalidating a compromise, it must be based upon the parties’ unconscious ignorance; it must not relate to one of the uncertainties of which the parties were conscious and which it was the purpose of the compromise to resolve and put at rest.” Id. (internal quotations omitted).… By contrast, where the subject of uncertainty has not been a concern of the parties, i.e., where the post-contract discovery comes out of left field, an inference of intentional risk allocation is questionable. [Citations omitted.]
25
See 603 CMR 28.10(8)(d) (“ Upon notification of responsibility for provision of special education to a student under 603 CMR 28.10(8)(d), the school district(s) shall immediately assume responsibility for the student in accordance with the requirements of 603 CMR 28.00.”) (effective July 1, 2005).
26
Framingham’s Second Supplemental Opposition to Norwood’s Motion to Dismiss, at page 3.
27
Salem , 444 Mass. at 481 (“ plain language of §§ 3 and 5 of G.L. c. 71B has been 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 ’” (emphasis in original)), quoting Walker 416 Mass. at 295; Walker , 416 Mass. at 296-97 (“ under G.L. c. 71B, the department’s authority with respect to the assignment of fiscal responsibility is limited to the question of determining where a child resides”).
28
See Miller v. Cotter , 448 Mass. 671, 683, 863 N.E.2d 537 (2007) (“While courts are hesitant to invalidate contracts on … public policy grounds, the public interest in freedom of contract is sometimes outweighed by other public policy considerations; in those cases the contract will not be enforced.”); Beacon Hill Civic Ass’n v. Ristorante Toscano, Inc ., 422 Mass. 318, 321, 662 N.E.2d 1015 (1996) (“ it is a principle universally accepted that the public interest in freedom of contract is sometimes outweighed by public policy, and in such cases the contract will not be enforced”); McLaughlin v. Amirsaleh , 65 Mass.App.Ct. 873, 881, 844 N.E.2d 1105 (2006) (“ It is settled that a contract in violation of law or public policy will not be enforced.”). See also Restatement (Second) of Contracts § 178 (1981) (agreement may be unenforceable on grounds of public policy if enforcement is clearly outweighed by a public policy in the circumstances of the particular dispute).
29
603 CMR 28.10(8)(e).
30
See also City of Salem v. Bureau of Special Education Appeals, et al ., C.A. No. 02-0861-D, part A2 (Mass. Super. 2003) (upholding a BSEA Hearing Officer’s retroactive imposition of a school district’s special education responsibility), aff’d . 444 Mass. 476, 829 N.E.2d 641 (2005) ; In Re: Lowell Public Schools, Mass. Dept. of Education and Leominster Public Schools , BSEA # 03-2223, 10 MSER 393 (April 29, 2004) (ordering retroactive reimbursement) (collecting authorities).