In Re: Frontier Regional & Union 38 School District BSEA# 26-03439 & BSEA# 26-03848

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Frontier Regional & Union 38 School District

BSEA# 26-03439 & BSEA# 26-03848

RULING ON FRONTIER REGIONAL  SCHOOL DISTRICT’S

MOTION FOR SUMMARY JUDGMENT

On September 22, 2025, Frontier Regional  School District (Frontier or the District) filed a Hearing Request (BSEA # 2603439)[1] with the Bureau of Special Education Appeals (BSEA) comprising a single issue for Hearing: Whether Student, “as a homeschooled student residing in Deerfield, Massachusetts, which is within the Frontier Regional School District, is entitled to a full array of B grid Services.” The District’s complaint sought, in part, “an Order that the District is not mandated to provide Grid B services to this homeschooled student that does not participate in the general education classroom, and the District’s obligation to provide comparable services is met by providing the Student with C grid services.”  Specifically, according to Frontier, the District created Individualized Education Programs (IEPs) in good faith, expecting the Parents to re-enroll the Student, but he remains homeschooled with no plan to return. As a result, the IEPs with Grid B push-in services do not apply. When a student shifts to homeschooling, the IEP must be reviewed to determine which services the District can provide. Parents have refused to modify the IEP and expect the full in-school services, including lunch, recess, and specials, originally intended to help transition Student from his previous school.

On September 30, 2025, Parents filed Parent’s [sic] Response To Frontier Regional And Union 38 Public Schools’ Hearing Request And Parent’s Counterclaims (Response), which they amended on October 3, 2025.  In it, Parents assert that grid labels do not define entitlement; the IEP does. “Grid B” indicates delivery/location, not a cap on services. For homeschooled or parentally placed students, Massachusetts requires the District to evaluate, convene a Team, issue a compliant IEP, and provide services at a public or neutral site with quality comparable to enrolled peers. Because Student’s needs occur in nonacademic/general-education settings (specials, lunch, recess), the District must provide supported/push-in access or a functionally equivalent arrangement.

Parents reject the District’s claim that “C-grid pull-out services” suffice, citing Massachusetts and federal regulations that ensure all special education students have equal access to nonacademic programs and that the Least Restrictive Environment (LRE) mandate requires education with nondisabled peers whenever appropriate. They emphasize that service grid categories are reporting tools, not service limits, and that needs manifesting in general-education/nonacademic settings require B-grid push-in services and supplementary aids, even for homeschooled students.

On October 21, Frontier filed Frontier Regional Public School District’s Motion For Summary Judgment (the Motion), asserting that Parents are requesting full IEP services for their homeschooled student, to which they are not legally entitled. The District is providing equitable services, meeting or exceeding its proportionate share obligation under the Individuals with Disabilities Education Act (IDEA )and Massachusetts law. There is no genuine dispute of material fact requiring a hearing. Both IDEA and Massachusetts law allow the use of a proportionate share to deliver comparable services, as clarified by the Department of Elementary and Secondary Education (DESE), and homeschool students are treated similarly to private school students. Therefore, the District requests Summary Judgment, as Parents’ claim does not provide a basis for relief.

On October 27, 2025, Parents filed Parents’ Opposition To District’s Summary Judgement Standard And Submission Of The Accurate Applicable Standard To The District’s Motion For Summary Judgment (Opposition) asserting that

“Frontier’s Motion for Summary Decision rests on a misapplication of law and an incomplete factual record. The District seeks to reframe this case as a narrow question of homeschool entitlement under the federal ‘equitable-services’ provisions, disregarding and evading the broader and controlling Massachusetts framework that governs not only resident students but its funds. In doing so, Frontier relies on a selectively truncated interpretation of the applicable regulations—treating the federal floor as a ceiling and violating the state obligations triggered by its use of state and local special-education funds.”

Specifically, Parents assert that “this matter rests on competing factual narratives that demand credibility determinations and testimony across core issues: funding source, comparability and nonacademic access, evaluation settings, stay-put implementation, IEP specificity, and parental participation.” As such, “[s]ummary decision is improper, and this matter should move through full evidentiary hearing.”

Because neither party requested a hearing on the Motion, and as neither testimony nor oral argument would advance the Hearing Officer’s understanding of the issues involved, this Ruling is issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing Rule VII(D). 

For the reasons articulated below,  the District’s Motion is ALLOWED.

RELEVANT FACTS:[2]

1. Student is a 9-year-old third grade resident of the District. Student has been homeschooled through an approved homeschool plan submitted by his parents since 2023.

2. The family contacted Frontier in April 2023, after unenrolling Student from the Chinese Immersion Charter School located in Amherst, Massachusetts, and informed the District of their decision to homeschool Student. They indicated they might enroll him in the District for the 2023-2024 school year.

3. Due to the belief that Student would be enrolled in the Deerfield Elementary School within the District (Deerfield Elementary) in the fall of the 2023-2024 academic year, the District, at Parents’ request, allowed Student to participate in lunch, recess, and some specials there. This access was discontinued in January 2024, when it became clear to District staff that Parents did not intend to enroll Student in school. In addition, Deerfield Elementary’s master schedule had changed.

4. The District proposed an IEP in February 2024 for the period 2/14/24 through 2/14/25 (February 2024 IEP), which Parents partially rejected on 4/26/24. The Team reconvened and made some changes to the IEP. The revised IEP was partially rejected again on June 26, 2024.

5. On July 10, 2024, a proportionate share/service delivery meeting took place to discuss whether Student would remain a homeschooled student. Parents did not enroll Student at Deerfield Elementary for the 2024-2025 school year. An addendum to the February 2024 IEP was completed on August 28, 2024. The Parents partially rejected the IEP again.

6. In November 2024, a facilitated Team meeting took place to address Parents’ rejections. A new IEP for the period 11/28/2024 through 11/27/2025 was developed and proposed (November 2024 IEP). This IEP was partially rejected by Parents on January 2, 2025. At the time this IEP was proposed and then rejected, Student continued to be homeschooled, but Parents continued to represent that they planned to enroll him in school.

7. The accommodations and modifications proposed for Student in the November 2024 IEP were developed in  anticipation of his return to school. It proposed goals in Reading, Writing, Math, Social Emotional, Receptive/Expressive Language, Visual Integration, and Gross Motor. The service delivery grid was as follows: Grid A: Consultation, Gen ed teacher, 1 x 15min/week; Consultation, Speech pathologist, 1×15 min/week; Consultation, Physical Therapist, 1 x 15 min/week; Consultation, Occupational Therapist, 1 x 15min/week; Consultation, BCBA, 1 x60 min/week; Grid B: Reading, Sped Teacher or instructional assistant, 5 x 30min/week; Gross motor, PT or PT/A, 1 x  40min/month; Grade Level Specials Support, instructional assistant, 6 x 40min/week; Lunch/Recess Support, 1:1, 5 x 40min/week; Social Emotional, SLP, 1 x 30min/week; Math, Sped Teacher, 5 x 30/week; Visual Motor integration, OT or COTA, 1 x 30min/week; Academic/social emotional supports, instructional assistant, 5 x 120min/daily; Grid C: Literacy, Sped teacher or instructional assistant, 5 x 75min/week; Receptive/Expressive language, SLP, 2 x 30min/week; Social Emotional, SLP, 1 x 30 min/week; Gross Motor Participation, PT or PT/A, 1 x 15min/week; Visual Motor integration, OT or OTA, 1 x 30min/week.

8. In a letter dated January 2, 2025, Parents stated their objection to portions of the IEP, while accepting the proposed partial inclusion placement. Parents asserted stay put for many C grid services.

9. A facilitated Team meeting was held on May 6, 2025, to discuss Parents’ rejections. Following the meeting, a revised IEP was proposed, adding, in part, on the C grid, 2 x 30 minutes/week for social skills and 2 x 30/week for expressive and receptive language skills. The BCBA consultation on the A grid was changed to 1 x 60/week.

10. A follow-up facilitated meeting was held on June 11, 2025, to review more of Parents’ rejections as noted in their January 2025 partial rejection letter. Subsequently the following services were included in the IEP: A Grid: Special education teacher consult 1 x 30 minutes weekly; B grid: updated language adding a 1:1 instructional assistant, and math 2 x 30 minutes weekly; C grid: Math 3 x 30 minutes weekly. The N1 to this IEP states that if Student were going to remain a homeschool student, a service delivery plan meeting would take place.

11. Parents partially rejected the IEP in a letter dated August 28, 2025. It was the District’s understanding that the Parents object to the Grid B services being reduced as the student continues to be homeschooled.

12. To date, Parents continue to homeschool Student.

LEGAL STANDARDS:

1. Summary Judgment

Pursuant to 801 CMR 1.01(7)(h), summary decision may be granted when there is “no genuine issue of fact relating to all or part of a claim or defense and [the moving party] is entitled to prevail as a matter of law.”[3] In determining whether to grant summary judgment, BSEA hearing officers are guided by Rule 56 of the Federal and Massachusetts Rules of Civil Procedure, which provides that summary judgment may be granted only if the “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law.”[4] A genuine dispute as to a material fact exists if a fact that “carries with it the potential to affect the outcome of the suit” is disputed such that “a reasonable [fact-finder] could resolve the point in the favor of the non-moving party.”[5] “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”[6]

The moving party bears the burden of proof, and all evidence and inferences must be viewed in the light most favorable to the party opposing summary judgment.[7]

In response to a motion for summary judgment, the opposing party “must set forth specific facts showing that there is a genuine issue for trial.”[8]  To survive this motion and proceed to hearing, the adverse party must show that there is “sufficient evidence” in its favor that the fact finder could decide for it.[9] In other words, the evidence presented by the non-moving party “must have substance in the sense that it [demonstrates] differing versions of the truth which a factfinder must resolve at an ensuing trial.”[10] The non-moving party’s evidence will not suffice if it is comprised merely of “conclusory allegations, improbable inferences, and unsupported speculation.”[11]

2. IEP Services and Homeschooled Students

Although special education includes specially designed instruction provided in the home,[12] the IDEA provides different rights to students participating in homeschool education pursuant to parental preference, as opposed  those who are in a home program as an educational necessity. The IDEA states that “[n]o parentally placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school.”[13] If homeschool education constitutes enrollment in a private school under state law, then entitlements for homeschooled students are the same as those owed to students attending private schools in the state.[14] Homeschooled children attending public school on a part-time basis are entitled to services based on state law, which determines whether a homeschooled child with a disability is a public school student entitled to FAPE or a parentally placed private school student entitled to equitable services.[15]

If a state considers homeschooling as a private school program, the school district of residence must provide parentally placed homeschooled students with disabilities the opportunity for equitable participation in the services that the district has determined, after consultation, to make available to its population of parentally placed private school children with disabilities.[16] Districts must develop a “services plan” for parentally placed private school children designated to receive services. The services plan is “a written statement that describes the special education and related services the [local education agency or] LEA will provide to a parentally-placed child with a disability.”[17]   When developing service plans for private school students, districts must consult with parents and representatives of the private schools to determine appropriate educational provisions. [18]

3. Homeschooled Students in Massachusetts and District of Residence Obligations to Homeschooled Students

Massachusetts state law requires school districts to offer special education and related services to all eligible students who reside in the district, including students who are privately enrolled, regardless of where the student attends school.[19] In Massachusetts, privately enrolled students include students who are homeschooled.[20]  

Pursuant to 603 CMR 28.03(1)(e) (1), each “school district shall provide special education designed to meet the needs of eligible students who are [homeschooled] and whose parents reside in the jurisdiction of the school district. The school district shall provide to such students genuine opportunities to participate in the public school special education program consistent with state constitutional limitations.” [21] The school district must provide or arrange for the provision of evaluation services and an IEP for any eligible private school student whose parent resides in the jurisdiction of the school district.[22] Moreover, the “school district shall provide or arrange for the provision of the special education described by the student’s IEP provided that school districts shall ensure that special education services funded with state or local funds are provided in a public school facility or other public or neutral site.”[23] Special education provided by the school district to a homeschooled student “shall be comparable in quality, scope, and opportunity for participation to that provided to public school students with needs of equal importance.”[24]

4. Implementation of the IEP 

To provide a FAPE, a district must implement a student’s accepted IEP with all required components.[25] The First Circuit has indicated that noncompliance that affects the provision of an educational benefit amounts to a denial of FAPE.[26] In order to prevail in a failure-to-implement case, a parent must demonstrate that the school district has materially failed to implement a child’s IEP.[27] To do so, the parent must prove more than a minor or technical gap between the IEP and the district’s implementation thereof; de minimis shortfalls are not enough.[28] A material implementation failure occurs only when a school has failed to implement substantial or significant provisions of a student’s IEP.[29]

DISCUSSION:

Here, the District filed a Motion for Summary Judgment on the issue of whether Student, “as a home[-]schooled student residing in Deerfield, Massachusetts, which is within the Frontier Regional School District, is entitled to a full array of B grid Services.” As to this issue, I must determine whether a genuine issue exists that would preclude entry of summary judgment , and if not, whether the District prevails as a matter of law. For the District to prevail on its Motion for Summary Judgment, it must demonstrate, through the documents submitted in support of its Motion, that “there is no genuine issue of fact relating to all or part of a claim or defense and [the party] is entitled to prevail as a matter of law….”[30]   

Parents argue that the record contains multiple credibility-dependent and factual disputes, including the scope and settings of evaluations, IEP specificity and implementation, neutral-site and comparable access, stay-put implementation, and procedural compliance. According to Parents, these disputes preclude paper disposition and require full evidentiary fact-finding. Parents assert that the “corrected factual background” shows that they maintain a good-faith educational plan tailored to Student’s needs and have communicated continuously with the District. They do not seek full-day enrollment or “every minute” of IEP services, but lawful access to Student’s comprehensive IEP so that its developmentally meaningful components can be implemented alongside home-based instruction. The District, however, has impeded access to services, restricted opportunities for generalization, and failed to implement IEPs properly, resulting in both procedural and substantive violations that deny Student meaningful educational benefit.

Parents identify numerous factual disputes that they assert are material, including whether the District conditioned access to services on re-enrollment, delayed or limited evaluations, issued boilerplate notices that impeded parental participation, limited Team participation, unilaterally reduced or repurposed services during pendency, and prewrote individualized service plans. As discussed below, such facts, while disputed, are not material for purposes of the single issue before me.

Based on the legal standards identified above, the material facts in this case include whether Student is an eligible child with a disability who is being homeschooled; whether the District consulted with Parents to determine education services for Student; and whether the District developed a “services plan” for Student. Based on state law, additional  material facts include whether Frontier provided or arranged for the provision of evaluation services and an IEP for Student in a public school facility or other public or neutral site, which are  “comparable in quality, scope, and opportunity for participation to that provided to public school students with needs of equal importance.”[31]

Here, there is no dispute as to the following material facts: Student is an eligible student with a disability and a resident of the District. The District invited and consulted with Parents, serving as home school representatives. The District then determined which services to provide following consultation with Parent representatives. In accordance with Massachusetts law[32], which provides eligible students with additional rights, the District also drafted an IEP for Student  that includes A, B, and C-Grid services, in the context of  a partial inclusion program. The District then determined which specific special education services it would provide, including where and when the District would provide those services to Student. Parents accepted portions of the IEP, rejected the omission of additional goals, supports, and services, and requested implementation of all accepted components. Although they consented to the District’s proposed partial inclusion program, Parents have not enrolled Student in the elementary school, and Student is currently being homeschooled.  The District provided or offered to provide C-Grid services on public school grounds. Whether the record shows procedural and substantive violations of IDEA and 603 CMR 28.00 is immaterial to the issue presented by the District for the purposes of summary judgment.

Parents’ Opposition emphasizes that Massachusetts law, through the use of state and local funds, imposes a higher duty on districts than the federal floor, and Parents are correct. Specifically, a Massachusetts school district is required to offer an IEP to a resident homeschooled student who is eligible for special education.[33] Parents may accept or reject the offer. However, if Parents accept the IEP, in part, said student may receive different services than his counterparts in public schools[34] because special education provided by the school district to a homeschooled student must be “comparable,”[35] not identical.[36]

In the instant matter, the District’s proposed services are designed for a partial inclusion program, which necessarily requires a school-based inclusion setting, something that homeschooling, by definition, is not. Parents are, in effect, seeking to implement a homeschool program within the public school but without enrollment in the school district. This is internally inconsistent and defies reason. Although a school district “may not require a student to enroll in order to receive evaluations or a proposed placement”[37], a school district is not required to replicate an inclusion environment for an unenrolled homeschooled student outside of the school setting at a “neutral site.”[38] Although the parties agree that Student requires B-Grid support to access the curriculum and engage in the life of the school within the general education setting, as a homeschooled student, by definition, he does not participate in that setting.[39]  While Parents are correct that special education provided by the school district to a homeschooled student “shall be comparable in quality, scope, and opportunity for participation to that provided to public school students with needs of equal importance,”[40]  the comparability standard does not require the District to recreate a general education inclusion program outside of the school environment so as to accommodate Parents’ preference for homeschooling Student. In other words, it is the District’s obligation to offer a homeschooled student a FAPE through an IEP, but if the parents decide to continue to homeschool, the student is entitled to special education services that are “comparable” but not equal to the offer of a FAPE.[41] To require otherwise would be infeasible and impractical. In the instant matter, Parents’ comparability argument relies on the District’s failure to provide all services included in the IEP albeit at a neutral site. However, as explained above, such is not the District’s obligation. Therefore, because “there is no genuine issue of fact” relating to the District’s claim relative to the implementation of the proposed and accepted B-Grid Services, the District is entitled to prevail as a matter of law.”[42]

ORDER:

The District’s Motion is ALLOWED.  All remaining issues related to procedural and substantive violations of FAPE will proceed to hearing.

So Ordered by the Hearing Officer,

/s/ Alina Kantor Nir

Alina Kantor Nir

Dated: October 31, 2025

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

Effect of the Decision

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program.”  Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau.  School Committee of Burlington v. Massachusetts Department of Education, 471 U.S. 359 (1985).  Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal.  Honig v. Doe, 484 U.S. 305 (1988); Doe v. Brookline, 722 F.2d 910 (1^st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Elementary and Secondary Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).

An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing

Company, 898 F.2d 1371 (8th. Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.

---

[1] This matter was consolidated with a previous hearing request filed by Parents, BSEA # 2603848, over the objection of the District, on October 6, 2025. See In Re: Frontier Regional & Union 38 School District (Ruling on Motions) (Kantor Nir, October 6, 2025).  

[2] The information in this section is drawn from the parties’ pleadings and is subject to revision in further proceedings.

[3] 801 CMR 1.01(7)(h).

[4] Id.

[5] French v. Merrill, 15 F.4th 116, 123 (1st Cir. 2021); see Maldanado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st  Cir. 1994).

[6] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

[7] See id. at 252; see also In Re: Westwood Pub. Sch., BSEA No. 10-1162 (Figueroa, 2010); In Re: Mike v. Boston Pub. Sch., BSEA No. 10-2417 (Oliver, 2010); Zelda v. Bridgewater-Raynham Pub. Sch. and Bristol County Agricultural Sch., BSEA No. 06-0256 (Byrne, 2006).

[8] Anderson, 477 U.S. at 250.

[9] Id. at 249.

[10] Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).

[11] Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

[12] See 34 CFR 300.39 (a)(1)(i).

[13] 34 CFR 300.137(a).

[14] See Hooks v. Clark County Sch. Dist., 33 IDELR 120 (9th Cir. 2000), cert. denied, 113 LRP 9215, 532 U.S. 971 (2001); Letter to Williams, 18 IDELR 742 (OSEP 1992); and Letter to Anonymous, 20 IDELR 177 (OSEP 1993). See  Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schs., 80 IDELR 197 (OSERS 2022) (observing that state law determines whether a homeschooled child with a disability is a public school student entitled to FAPE or a parentally placed private school student entitled to equitable services).

[15] See Letter to Anonymous, 20 IDELR 177 (OSEP 1993) (determining that under the law of an undisclosed state, a homeschooled child with a disability attending a public school on a part-time basis was entitled to special education and related services at the public school).

[16] Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schs.,  80 IDELR 197 (OSERS 2022).

[17] See 34 CFR 300.37. 

[18] 34 CFR 300.134.

[19] M.G.L. c. 71B, § 3.; 603 CMR 28.03(1)(e).

[20] 603 CMR 28.03(1)(e); see also Administrative Advisory SPED 2018-1, Guidance and Workbook for Calculating and Providing Proportionate Share Services for Students with Disabilities Enrolled by Their Parents in Private Schools, July 27, 2017, as revised July 2018 which may be found at https://www.doe.mass.edu/sped/advisories/2018-1.html. This is true for homeschooled students attending public school part time. See Questions and Answers on Serving Children With Disabilities Placed by Their Parents in Private Schools, Answer to Question I-3, OSEP QA 22-01, 80 IDELR 197 (OSERS 2022) (“Whether a [homeschooled] child with a disability is treated as a parentally-placed private school child entitled to be considered for equitable services or as a public school child entitled to receive FAPE is determined under State law. This is so, even if the child is permitted to attend public school for part of the school day. The responsible public agency, generally the LEA of residence, would have to make FAPE available to the child consistent with IDEA Part B requirements if the parent seeks to enroll the child with a disability in the public school full-time”).

[21] Although this regulation is titled “Private schools at private expense” and refers to private school students, it applies to homeschooled students as well since that is how state law treats homeschooled students.

[22] See 603 CMR 28.03(e)(2).

[23] 603 CMR 28.03(e)(3).

[24] 603 CMR 28.03(e)(4).

[25] See 34 CFR 300.323(c); 603 CMR 28.05(7)(b).

[26] See Roland M. v. Concord Sch. Comt., 910 F.2d 983, 994 (1st Cir. 1993).

[27] Colón-Vazquez v. Dep’t of Educ., 46 F. Supp. 3d 132, 144 (D. P.R. 2014) (implementation failure cases require an analysis of whether the deviations from the IEP’s stated requirements were “material” in that there was more than a minor discrepancy between the services a school provided to a disabled child and the services required by the child’s IEP with a focus on the proportion of services mandated to those actually provided, and the goal and import (as articulated in the IEP) of the specific service that was withheld) (internal citations omitted).

[28] See Ross v. Framingham Sch. Comm., 44 F. Supp. 2d 104, 118 (D. Mass. 1999) (“when presented with a claim that a school district failed to implement a student’s IEP, a district court must determine whether the alleged failure to implement the IEP deprived the student of her entitlement to a ‘free appropriate public education,’ as defined under the applicable federal and state prescriptions”).

[29] See id.

[30] 801 CMR 1.01(7)(h).

[31] 603 CMR 28.03(e)(4).

[32] According to federal law, Frontier was required to draft a “service plan” for Student.  It did so. Parents make no allegations that the District followed improper process in developing a service plan.

[33] 603 CMR 28.03(e)(2).

[34] See 34 CFR 300.138 (a)(2).

[35] 603 CMR 28.03(e)(4).

[36] According to Black’s Law Dictionary (11th ed. 2019), the term “comparable” is defined as “Capable of being compared; suitable for comparison; similar; like.” The term “comparable services” is also utilized in § 1414(d)(2)(C)(i)(I) and 603 CMR 28.03(1)(c), which address implementation of services to eligible students who experience a change of residence. Caselaw interpreting the relevant regulations distinguishes that implementation of comparable services requires similarity, not exact replication. See Morrison v. Perry Sch. Dep’t, No. 1:18-CV-00106-DBH, 2018 WL 6819313, at *4 (D. Me. Dec. 28, 2018), report and recommendation adopted, No. 1:18-CV-106-DBH, 2019 WL 237388 (D. Me. Jan. 16, 2019) (“to require a municipal school unit to provide a student’s education after the student moves to another municipal school unit would, in many instances, be impractical”); see also J.F. v. Byram Twp. Bd. of Educ., 629 F. App’x 235, 238 (3d Cir. 2015) (“The ‘trade-off’—requiring compliance with § 1414(d)(2)(C)(i)(I) but not mandating placement at the student’s former school—of our approach is ‘considered necessary in those circumstances where a child chooses to move to a new school district”).

[37] Rizio Next Friend of D.R. v. D.C., No. CV 21-0597 (ABJ), 2022 WL 59391, at *6 (D.D.C. Jan. 6, 2022); see Woods v. Northport Pub. Sch., 487 F. App’x 968, 979 (6th Cir. 2012) (“It is residency, rather than enrollment, that triggers a district’s IDEA obligations.”); see also District of Columbia v. Wolfire, 10 F. Supp. 3d 89, 95 (D.D.C. 2014) (“there is no requirement that a child be currently enrolled in a public school to be entitled to a FAPE offer”).

[38] See Marc V. v. N. E. Indep. Sch. Dist., 455 F. Supp. 2d 577, 595 (W.D. Tex. 2006), aff’d sub nom. Marc V. v. N. E. Indep. Sch. Dist., 242 F. App’x 271 (5th Cir. 2007) (where a student’s program and placement were developed based on the assessments that recommended more class structure than is possible with only general education support, the court concluded that many of the “IEP goals would be practically impossible to implement in a homebound setting”); cf. L.J. by N.N.J. v. Sch. Bd. of Broward Cnty., 927 F.3d 1203, 1213 (11th Cir. 2019) (“An old IEP may quite literally be impossible to fully implement in a new setting—for example, where (as here) the child has transitioned from elementary to middle school. In view of this on-the-ground reality, other circuits have recognized that as ‘a child progresses from preschool to elementary school, from elementary school to middle school or from middle school to high school, the status quo no longer exists’—and as a result, when a school finds itself in this situation, ‘the obligation of the new district is to provide educational services that approximate the student’s old IEP as closely as possible’”) (citing to John M. v. Bd. of Educ. of Evanston Twp. High Sch. Dist., 502 F.3d 708, 714–15 (7th Cir. 2007) (internal quotation marks and citations omitted); In Re: Student and Franklin Public Schools and the Department of Developmental Services, BSEA # 25-00429 (Mitchell, 2025) (“it is not disputed that the District could not replicate a residential educational program at home”); Newburyport Public Schools’ Motion For Summary Judgment’, And  Parents’ [Partial] Motion For Summary Judgment, BSEA # 2411365 (Kantor Nir, June 10, 2024) (“Although Parents requested immediate implementation of the signed 2023-2024 IEP in January 2024, such request was an impossibility as the services proposed by the 2023-2024 IEP, and subsequently by the 2024-2025 IEP, were to be implemented in the context of a day program, and neither party has proposed that the accepted portions of the 2023-2024 IEP could be implemented anywhere but in such program”); San Lorenzo Valley Unified School District, SN01-02735,  37 IDELR 107 (SEA CA, 2002) (“The District could not implement [ ] agreed upon goals and objectives … until after it offered [ ] a school-based placement”).

[39] Although Parents are correct that Student is entitled to placement in the least restrictive environment, they have chosen not to avail themselves of the least restrictive environment, which, here, is the District’s proposed partial inclusion setting. See cf. Fitzpatrick v. Town of Falmouth, 321 F. Supp. 2d 119, 124 (D. Me. 2004) (where “the Amended Complaint assert[ed] that this ‘[homeschooled] child’ ‘has the inherent right to interact and play with other children at said playground,’ and that the defendants have denied this voluntarily [homeschooled] child ‘the guarantee that he … is to be fully integrated into the public schools,’ the court found that the “breadth of these assertions [was] inconsistent with the very premise of [homeschooling]. Given the fact that this child [was] [homeschooled], it [was] also confusing for the plaintiffs’ opposition memorandum to speak of the school administrators as causing the child ‘to be isolated from his classmates,’ to refer to the ‘proposition that in any school, playground play is crucial to the development of a child, normal or handicapped,’ and to announce that “handicapped and non handicapped students should, whenever possible, be educated together’”) (internal references omitted). This footnote great for instant case

[40] 603 CMR 28.03(e)(4).

[41] See Rizio, 2022 WL 59391, at *7 (finding that the District “conflat[ed] its responsibility to offer FAPE with its responsibility to provide the actual services” and explaining that where “[i]t is true that when the parents ‘make clear [their] intent to keep the child enrolled’ elsewhere, the District is not required to provide the services that would constitute a FAPE. However, it is also quite clear that the District is still required to make an offer of FAPE….[T]he receipt of services pursuant to an IEP is predicated on a child enrolling in a public school, but an offer of an IEP is not”) (internal citations, brackets, and quotation marks omitted).

[42] 801 CMR 1.01(7)(h).