In Re: Foxborough Public Schools, Norwood Public Schools,the Department of Elementary and Secondary Education,& Student BSEA# 26-00283

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Foxborough Public Schools, Norwood Public Schools,the Department of Elementary and Secondary Education,& Student

BSEA# 26-00283                                                                     

DECISION

This decision is issued pursuant to 603 CMR 28.10, the state special education law (M. G.L. c. 71B), the state Administrative Procedure Act (M.G.L. c. 30A), and the regulations promulgated under these statutes.

A hearing was held on January 12, 2026, before Hearing Officer Amy Reichbach, to permit the parties to supplement their written submissions with oral arguments. With the consent of all parties and agreement of all participants, the hearing was held in a virtual format. Those present for all or part of the proceedings were:        

Cory Mikolazyk                         Director of Student Services, Foxborough Public Schools                                       

Craig Kowalski, Esq.                 Attorney for Foxborough Public Schools

Catherine Lyons, Esq.              Attorney for Norwood Public Schools

Leah Porter, Esq.                      Attorney for the Department of Elementary and Secondary Education

Joshua Varon, Esq.                   Attorney for the Department of Elementary and Secondary Education

Kristin Wesolaski, Esq.            Attorney for Norwood Public Schools

Carol Kusinitz                           Court Reporter

The official record of the hearing consists of documents submitted by Foxborough Public Schools (Foxborough, or FPS) and marked as Exhibits F-1 to F-7; documents submitted by the Department of Elementary and Secondary Education (DESE, or the Department) and marked as Exhibits D-1 through D-24; documents submitted by Norwood Public Schools (Norwood, or NPS) and marked as Exhibits N-1 through N-4; one half hour of oral argument; and a one-volume transcript produced by the court reporter.

1. INTRODUCTION

On July 9, 2025, Foxborough filed a LEA (Local Educational Agency) Assignment Hearing Request (Hearing Request) with the BSEA against Norwood, DESE, and Student. The Hearing Request sought a determination that DESE erred in assigning programmatic and financial responsibility for Student’s special education program to FPS and an order for reimbursement by Norwood for costs incurred by FPS, including, but not limited to, all tuition paid by Foxborough to a public day school on behalf of Student and costs associated with transporting her there. Specifically, Foxborough argued that Student, who attends a separate public day school[1] and has been staying with Parent at a hotel[2] within its geographical limits since on or about February 2025, is homeless under the McKinney-Vento Homeless Assistance Act (McKinney-Vento or the Act). As such, as her last known residence, Norwood is her “district of origin” pursuant to relevant statutes and should continue to bear programmatic and fiscal responsibility for her education. In the underlying LEA Assignment matter, DESE issued an Assignment of School Responsibility on June 18, 2025, in which the Department concluded that Student was not homeless and assigned programmatic and financial responsibility for her special education program to Foxborough. The BSEA Hearing on Foxborough’s Hearing Request was initially scheduled for July 29, 2025.

Norwood filed its Response to Foxborough’s Hearing Request on July 17, 2025, asserting that DESE properly determined, after making an individualized inquiry, that Student and Father are not homeless as they do not lack a fixed, regular, and adequate nighttime residence, and that the Department properly assigned programmatic and financial responsibility for Student to FPS because she resides in Foxborough. On July 18, 2025, Foxborough filed an assented-to request to postpone the Hearing to October 6 and 10, 2025, which was allowed for good cause on the same day. On July 21, 2025, DESE filed its Response to Foxborough’s Hearing Request, asserting that the BSEA should affirm DESE’s LEA assignment because the Department carefully reviewed the factual circumstances before determining that Student resides in Foxborough; the BSEA does not have jurisdiction to review DESE’s determination that Student is not homeless; and the BSEA should defer to DESE’s interpretation of its own regulations.

On August 18, 2025, pursuant to the joint request of the parties, the undersigned Hearing Officer issued an Order providing that the matter would proceed on written submissions, rather than live testimony. On September 25, 2025, the parties jointly requested that the due date for final written submissions and arguments be extended to November 18, 2025, with oral arguments on November 19, 2025, to allow for the resolution of an outstanding issue involving a subpoena duces tecum.[3] This request was allowed for good cause on September 26, 2025. On November 14, 2025, at the joint request of the parties and for good cause, the Hearing was continued to December 19, 2025. On November 19, 2025, the Hearing was advanced by one day for administrative reasons and with the agreement of the parties, but on December 17, 2025, Foxborough requested a further postponement. With the assent of all parties, the matter was postponed, for good cause, to January 12, 2026. Oral arguments were heard and the record closed on that date.

The sole issue set forth for Hearing is as follows: whether DESE erred in assigning programmatic and financial responsibility for Student’s special education program to Foxborough in the Assignment of School Responsibility issued by the Department on June 18, 2025.

2. FINDINGS OF FACT[4]

1. Student is 17 years old. Prior to February 3, 2025, Student resided with her mother (Mother) in Norwood, Massachusetts. Mother holds full custody of Student, who was enrolled in NPS from 2013 to 2025. On or about July 1, 2023, Norwood placed Student in an out-of-district placement, pursuant to an accepted individualized education program (IEP).[5] Norwood provided door-to-door regular transportation for Student from Mother’s address to her out-of-district placement, as Student’s IEP did not and does not provide for specialized transportation, (F-1, F-4; D-1, D-4, D-13A, D-14; N-1)
2. Student has been living with her father (Father) at Hotel in Foxborough since on or about February 3, 2025.[6] (F-1; D-1)
3. Although Student was not, and is not, in DCF custody, DCF provided assistance to her and helped facilitate her relocation to Foxborough. Mother and Father assented to this arrangement. Mother signed an undated caregiver authorization affidavit that names Father as Student’s lawful caregiver and lists his address at Hotel. There is no evidence to suggest that Mother’s parental rights have been terminated or otherwise limited. (F-1, F-2, F-4; D-1, D-3, D-11)
4. Father has been living at Hotel since November 2021 and, as of June 18, 2025, had been renting the same unit for approximately 3.5 years. He pays a weekly rent amount of $375, which includes utilities.[7] (F-1, F-4; D-1, D-6, D-7, D-13)
5. The hotel unit features amenities such as a kitchen, including a sink, stove, and refrigerator; a full bathroom; and a bedroom.[8] Father occupies the bedroom. Student has a twin bed in the open living/dining area. (F-1; D-1, D-13A, D-17; N-1, N-2)
6. Father receives all mail and legal documents, including his automobile insurance bill, at a relative’s address in Plainville, Massachusetts. He communicated to Norwood and to DESE that this is for privacy. Father’s driver’s license lists the same Plainville address. (F-1, F-2, F-4; D-1, D-8, D-9, D-13A; N-1)
7. There is no evidence to suggest that Father chose to live in a hotel specifically due to a lack of alternative adequate accommodations. (F-1; D-1)
8. The Directors of Student Services from Norwood and Foxborough discussed this case at a virtual meeting on or about February 14, 2025. The Districts met again on February 28, 2025, this time with representatives from DESE and DCF, including the State Coordinator for Homeless Education. (F-4)
9. On February 26, 2025, Norwood filed a request with DESE for clarification of school district responsibility (LEA Assignment request). On March 10, 2025, however, DESE informed FPS and NPS that Norwood’s request would be closed “until a determination of homelessness or not is made and agreed upon” by Norwood and Foxborough. (F-4; D-4, D-14, D-16)
10. In or about early to mid-March, 2025, DCF assisted Father in submitting enrollment paperwork to Foxborough, including recent pay stubs and a letter on Hotel letterhead from an individual stating that he is the owner of Hotel, indicating that Father has permission to use the address of Hotel “as his residence.” The letter was not notarized or dated. (F-1, F-2, F-4; D-1, D-6)
11. On March 4, 2025, Norwood provided Father with a “Determination of Housing Status,” a letter informing him that NPS does not consider Student to be homeless, given the facts presented to Norwood. (D-5, D-13C; N-3) Parents did not appeal this determination. (F-4)
12. On March 11, 2025, the Department’s State Coordinator for Homeless Education informed the parties that as Norwood had determined that Student was not eligible for McKinney-Vento and Parents had not appealed, Foxborough should enroll Student as soon as possible. DESE explained that if FPS deemed Student eligible for McKinney-Vento, Foxborough could dispute Norwood’s homeless determination, which would be reviewed through DESE’s compliance office. At the time of this email, on March 11, 2025, Norwood was continuing to fund Student’s out-of-district placement and transportation to and from Norwood. (F-4)
13. As of March 12, 2025, Student had not been enrolled in Foxborough, as FPS had determined that Father had not submitted sufficient proof of residency. According to DCF, Father had submitted all available documentation of his address in Foxborough and did not have any utility bills, tax bills, a formal lease, or other documents to provide. At this time, Father was driving Student to and from Norwood to meet her transportation, which was endangering his continued employment. Foxborough maintained that Student should have been identified “homeless” pursuant to McKinney-Vento, and that had Norwood determined that Student was “homeless in accordance with the Massachusetts DESE definition of Homeless Children and Youth, there would be no disruption in education or transportation.” Absent such determination, Student’s registration within FPS could not be finalized and Foxborough would be “unable to provide transportation or fund the current placement.” DCF contacted DESE several times in March 2025, copying both FPS and NPS, advocating for Student’s enrollment in Foxborough. Foxborough responded that as Father could not provide the necessary residency documentation, “Norwood should reconsider their determination of the student’s homelessness status.” FPS also asserted that Foxborough “would begin the registration process once [FPS] receive[d] an LEA assignment letter.” (F-4; D-4, D-15)
14. At some point around this time, Norwood initiated disenrollment procedures, consistent with its conclusion that Student was no longer a resident of Norwood, not homeless, and had established residency in Foxborough. Neither parent disputed this determination. (F-1, F-4; D-1)
15. On or about March 21, 2025, Foxborough filed a LEA Hearing Request against Norwood and DESE (BSEA #2510624) requesting a determination that Student became “homeless” within the meaning of McKinney-Vento when she began staying with Father at Hotel, and a determination that DESE erred in failing to issue a LEA Assignment. BSEA #2510624 was dismissed on or about April 15, 2025, when Hearing Officer Alina Kantor Nir concluded that BSEA involvement was premature and, as such, granted Motions to Dismiss filed by both DESE and Norwood. (D-10, D-18, D-19, D-20)
16. Ultimately, Father was able to enroll Student in FPS on or about April 3, 2025. Foxborough enrolled Student pursuant to McKinney-Vento, as “[d]espite multiple conversations, [Father] was unable to provide valid proof of residency.[9] Foxborough began providing transportation for Student from Hotel to her special education placement. (F-1, F-4; D-1, D-11)
17. On or about April 3, 2025, Foxborough filed a further LEA Assignment request for Student. At the time, Foxborough was unable to provide DESE with a signed IEP, administrative data page, and PL1, as FPS had not received these documents from Norwood.[10] (F-1; D-1, D-10, D-11)
18. On May 1, 2025, DESE issued a LEA Assignment Alert to Foxborough and Norwood, outlining the facts as the Department had received them and inviting both districts to submit additional information within 14 days. (D-12) Norwood provided a Narrative Response on May 12, 2025, outlining its position that Student was not homeless; that she had moved from Norwood to Foxborough on or about February 3, 2025; and that, consequently, Foxborough is responsible as of that date for all special education costs and programming as described in Student’s IEP and placement in a public day school program. (D-13) On May 14, 2025, Foxborough provided its own letter, outlining FPS’s position that Student became homeless when she began staying with Father at Hotel and, as such, Norwood (as Student’s “district of origin”) retains programmatic and financial responsibility for her education.
19. In an Assignment of School District Responsibility (LEA Assignment) issued by DESE on June 18, 2025, the Department assigned both programmatic and fiscal responsibility for Student to Foxborough as of February 3, 2025. Specifically, DESE found that Student “resides in a hotel with Father,” and that “hotel management treats him as a resident.” DESE concluded that Hotel is a “fixed, regular, adequate nighttime residence,” pursuant to the definitions within McKinney-Vento. (F-1; D-1)
20. In connection with the underlying LEA Assignment, Student’s former DCF caseworker provided information to DESE that “verified the features of the space where Student is living with Father in Foxborough.” (F-1; D-1)
21. Three unrelated school districts have concluded that three individual students who attend schools within their school districts and reside in Foxborough at Hotel qualify as “homeless” for purposes of sharing transportation costs under McKinney-Vento. No further information has been provided regarding the living situations of these students. (F-3)

3. DISCUSSION

To determine whether DESE correctly assigned programmatic and financial responsibility for Student’s education to Foxborough, I must consider state and federal law regarding school district responsibility for students with disabilities; definitions pertaining to, and rights of, homeless children and youth; and the limits of BSEA jurisdiction. I then apply these laws and regulations to the facts above.

1. Legal Standards

1. BSEA Jurisdiction

The IDEA, 20 U.S.C. § 1400 et seq., provides parents the right to pursue a formal due process complaint with respect to “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.”[11] In Massachusetts, the BSEA is the administrative agency before which any impartial due process hearing regarding these issues takes place. The BSEA is an agency of limited jurisdiction; it has jurisdiction over requests for hearing filed by:

a parent or school district   . . . on any matter concerning the eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law, or procedural protections of state and federal law for students with disabilities. A parent of a student with a disability may also request a hearing on any issue involving the denial of the free appropriate public education guaranteed by Section 504 . . . .[12]

BSEA jurisdiction specifically includes appeals of the Department’s assignments of school district responsibility for children with disabilities,[13] as each LEA assignment necessarily concerns “a matter relating to the . . . education program or educational placement of a child with a disability or the provision of a free appropriate public education to the child.”[14]

2. School District Responsibility for Children with Disabilities

In Massachusetts, all students have the right to enroll in the school district where they reside.[15] Each school district must identify school age children residing within its bounds who have a disability, “diagnose and evaluate the needs of such children, propose a special education program to meet those needs, provide or arrange for the provision of such special education program, maintain a record of such identification, diagnosis, proposal and program actually provided and make such reports as the department may require.”[16] The district in which a student resides is responsible for her special education programming.[17] Where a student’s legal residence is unclear, DESE has the authority to adopt regulations to assist in resolving the issue.[18] Pursuant to this authority, the Department promulgated regulations concerning assignment of special education responsibility, which are set forth at 603 CMR 28.10.

In accordance with 603 CMR 28.10, DESE assigns school district responsibility for a particular student based on whether the student lives with one or both parents; is over 18 years old and has established her own residence as an adult; lives in an institutional facility operated by one of several enumerated state agencies; lives with relatives; is placed in foster care; is homeless; or is in another living situation as described. Generally, when a student is living with a parent, the school district “where the student resides shall have both programmatic and financial responsibility.”[19]

3. “Homelessness” Under the McKinney-Vento Act and Massachusetts Regulations

1. School Placement of, and School District Responsibility for, Homeless Children and Youth

Notwithstanding state laws regarding student enrollment, federal law confers additional rights on students who are experiencing homelessness. McKinney-Vento provides that a student who has become homeless has the right to continue her enrollment in the district where she resided before becoming homeless or to enroll in the district where she resides temporarily.[20] Pursuant to Massachusetts regulations regarding assignment of school district responsibility for homeless students, this determination depends on whether the student chooses to remain enrolled in the district where she was enrolled prior to becoming homeless or elects to enroll in the district where she is residing temporarily during the period of homelessness.[21] Specifically:

The school district(s) that was programmatically and financially responsible prior to the student becoming homeless shall remain programmatically and financially responsible for a homeless student until the parent(s) or legal guardian or state agency with care or custody of the student chooses to enroll the student in the school district where the shelter or temporary residence is located . . . When a student whose IEP requires out-of-district services is enrolled in the school district where the student is temporarily residing, then that school district shall become programmatically responsible upon enrollment and the school district(s) that was financially responsible prior to the student becoming homeless shall remain financially responsible until the student is no longer homeless.[22]

McKinney-Vento requires States, as a condition of receiving federal funds, to ensure that school districts provide educational services to homeless children and youth, and that all homeless students with disabilities have equal access to a free appropriate public education.[23] Further, the Act instructs States to establish a system for resolution of disputes regarding the educational placement of homeless students.[24]

In Massachusetts, the Department issued an advisory entitled McKinney-Vento Homeless Education Assistance – Advisories (Department’s McKinney-Vento Guidance), which outlines this system. Under the Department’s McKinney-Vento Guidance, if a dispute arises between a school district and a parent, the parent must be “provided with a written explanation of any enrollment decisions made by the district and must be informed of the right . . . to appeal the decision to [DESE].”[25] Pursuant to the Guidance, upon receipt of a form documenting a school district’s denial of a student’s requested enrollment, the appeal, and any additional requested information, the Department’s Commissioner “shall promptly issue a decision,” which “shall be final.”[26]

2. Defining Homelessness

McKinney-Vento defines “homeless children and youths” as “individuals who lack a fixed, regular, and adequate nighttime residence.”[27] The term specifically includes, in pertinent part, “children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; or are abandoned in hospitals.”[28]

The National Center for Homeless Education (NCHE) advises those analyzing whether a student is homeless pursuant to McKinney-Vento to begin by gathering information regarding the child’s or youth’s living situation and considering “whether the student’s living arrangement fits into one of the specific examples listed in the definition.”[29] Living in a motel, hotel, trailer park, or camping grounds does not, however, automatically render a child homeless, as NCHE counsels that most families or youth living in motels, hotels, or camping grounds “are likely to be considered homeless, as these arrangements are rarely fixed, regular, and adequate, or intended to serve as a permanent residence; however considering whether alternative adequate accommodations are available can help identify possible exceptions.”[30] A judge in the United States Court for the District of Delaware, for example, found that where parents held joint custody of children and the children moved in with their father in another school district after their mother lost her apartment within the school district they attended, they did not qualify for continued enrollment as homeless children because they had alternative adequate accommodations.[31]

In an Appendix to its Guide for Determining McKinney-Vento Eligibility, NCHE provides guidance for determining whether a particular living situation is “fixed,” “regular,” and “adequate,” given that McKinney-Vento does not define any of these terms.[32] NCHE lists several dictionary definitions for “fixed”: placed or attached in a way that does not move easily; securely placed or fastened; not subject to change or fluctuation.[33] For “regular,” NCHE lists definitions from both Merriam-Webster and Ballantine’s Law Dictionary: happening over and over again at the same time or in the same way; occurring every day, week, month, etc.; recurring, attending, or functioning at fixed, uniform, or normal intervals; conforming to an established rule, principle, or custom; consistent, following a fixed procedure or schedule; acting or happening at uniform levels.[34] “Adequate” is defined by these dictionaries as: sufficient for a specific requirement; fully sufficient, equal to what is required, lawfully and reasonably sufficient.[35] Administrative Law Judges (ALJs) in New Jersey have applied these definitions to conclude that children were not homeless despite living in the circumstances enumerated in § 11434a(2)(B)(i) of McKinney-Vento (i.e. sharing the housing of relatives or living in a mobile home on a campground), finding “that the location was fixed and that the use was regular because the family had lived in the same place for several years; and that their living situation was adequate because the children had a designated sleeping area and access to a kitchen and bathroom facilities, despite the sharing of rooms and limited space.”[36]

Consistent with its recognition that exceptions exist within the Act’s enumerated categories, NCHE further advises that determinations regarding students’ homelessness pursuant to McKinney–Vento should be made “on a case-by-case basis, considering what is known about each individual child’s or youth’s circumstances.”[37] ALJs have come to the same conclusion, noting, for example, that “the evaluation of homelessness cannot be based upon simple calculations;” that “homelessness is best viewed in a continuum;” that a decision-maker must consider “the totality of the circumstances;” and that “[t]he reasons for the children’s homelessness, their living conditions, and the resources and intentions of the parents or custodians are relevant.”[38] Courts have also adopted this case-by-case approach to find that due to a child’s individual circumstances, she is not “homeless” for purposes of McKinney-Vento despite living in hotel or motel or sharing the housing of a family member.[39]

For example, the Commissioner of New York State Education Department (NYSED) upheld a school district’s determination that siblings were not homeless under state and federal law, though they were sharing the housing of a relative due to a loss of housing and economic hardship after their home was damaged during a hurricane and ultimately had to be sold in a short sale.[40] Specifically, the Commissioner concluded that as the siblings had resided at the same out-of-district address for almost three years and each had their own bedroom, they had a “fixed, regular and adequate nighttime residence and there is no evidence that such residence is temporary or inadequate.”[41] Moreover, according to the Commissioner, “[p]roof of economic hardship, in and of itself, is not sufficient to establish homelessness.”[42] Similarly, an ALJ in the New Jersey Office of Administrative Law held that where a family “could no longer meet the income requirements for the lease” in the town where the children were attending school and was “forced to relocate” to a relative’s home in another town, the family was not “homeless” under state and federal law. [43] In reaching this conclusion, the ALJ noted that “[n]ot every child residing temporarily with a relative is ‘homeless,’” then discussed the family’s living circumstances and found that despite the fact that the children were sharing the home of a relative, they lived in a “fixed, regular, and adequate residence.” [44]

In Board of Education of Mount Olive v. Board of Education of Englewood, another ALJ in New Jersey examined the specific circumstances underlying a family’s living situation, and upheld a school district’s determination that children were not homeless despite living in a mobile home on a campground, which he recognized as one of the enumerated circumstances for “homelessness” under McKinney-Vento .[45] Factors the ALJ considered in making his decision were that the campground was open all year long; that the family paid a monthly fee that included both water and electricity; that the mobile home had a kitchen and each child had his own room; and that the family “consider[ed] the mobile home as their permanent home.”[46] The ALJ rejected the argument that the family was homeless because living in a mobile home was included in the definition of homelessness under both McKinney-Vento and New Jersey regulations, as these definitions both “have at their core the concept of a fixed, regular, and adequate place to live with regular sleeping accommodations.”[47] The ALJ concluded that the mobile home was the family’s domicile, or their “true, fixed, permanent home, from which [they have] no intention of moving,” and, as such, the students resided in the school district in which the campground was located.[48]

This reasoning has also been applied to find that children and youth living in hotels are not necessarily homeless. In Appeal of M.M., the NYSED Commissioner noted that students who had, in 2016, been displaced from their home and began living at a hotel located within the school district they had been attending (at which time the school district had deemed them homeless), were to be considered district residents in 2020, though they were still living at the same hotel.[49] DESE’s 2020 Guidance on Fixed, Regular, and Adequate Housing: Identifying Family and Youth Homelessness (Department’s Housing Guidance), reflects this possibility as well, as it advises that those making determinations of homelessness involving families renting rooms consider individual factors.[50] Specifically, the Department’s Housing Guidance counsels that:

Though a family is paying rent, a room may not be adequate to meet the physical and psychological needs of the student. Many room rental arrangements are not regular and far from secure or stable. When determining homelessness, liaisons should consider the context that requires the student/family to live in a room rental arrangement, the local housing market, and other factors that may contribute to housing instability.[51]

Due to the stigma associated with homelessness, NCHE cautions, “families or youth may not consider themselves homeless even though their living arrangement meets the definition.”[52] Nevertheless, reviews of school district decisions about whether a student is homeless have, at times, considered a family’s view of (or intentions regarding), their living arrangement as one factor in the determination.[53] The availability of resources and whether parents intend for a housing situation to be temporary or permanent, however, is not controlling. Even if parents lack the resources to move out of shared housing arrangements or hotels that they intend to be temporary, these circumstances and this intention, together, do not render their children permanently homeless, as “the realities of long-term economic hardship, or at least of long-term economic limitations, shared by so many families,” may “work to convert a state of ‘homelessness’ to one where the child is no longer ‘homeless,’” at least where the child regularly occupies an adequate living place.[54] That living place need not be permanent; McKinney-Vento is “intended to address situations, for example, of a parent who has no place to live, or moves frequently from place to place or is temporarily living in a motel.”[55]

3. DCF and Homelessness

Because Foxborough argues that DCF could have facilitated Student’s placement with Father even if Father were homeless, I examine relevant DCF regulations regarding homeless children and families. Most of these regulations are tangential to this case, as they relate to placements and removals made by DCF, neither of which applies to the instant matter. 110 CMR Mass. Regs 1.11, for example, entitled Special Provisions Relating to Homeless Families, “affirms [DCF’s] policy that poverty or homelessness are not per se indicative of child abuse or neglect; and that children should never be removed from their parents and placed into substitute care on the sole basis of homelessness.” The same provision describes DCF’s efforts on behalf of a homeless family as including “efforts to provide access to facilities which allow a family to feed, bathe, and care for their children.”[56] A Memorandum of Understanding Between the Department of Housing and Community Development and DCF entered into on January 2, 2015, which the agencies entered into “for the purpose of better coordinating the services each provide to homeless families” in Massachusetts, references placement of homeless families in motels and hotels, but specifies that the agreement refers only to families that “need to be placed in a motel/hotel due to lack of family shelter availability,” where a family is ready to reunify and a lack of housing is the only remaining barrier.[57]

Within its policy regarding housing standards for foster, pre-adoptive, and kinship homes, DCF sets forth requirements for licensing of such homes for children in its care or custody.[58] Under “Sleeping,” the policy explains that the “home must have sufficient furniture to allow each child to sleep in a separate bed and to have adequate storage space for his or her personal belongings,” and that bedrooms must provide “at least 50 square feet per child, unless determined in the best interest of the child, on a case-by-case basis, for kinship placements.”[59] As to “Utilities, Kitchen and Bath,” the policy specifies that in addition to access to a working telephone, the home must have safe and adequate lighting, ventilation, electricity, and heat; hot and cold running water; a properly operating bathroom with a sink, toilet, tub and/or shower; and a properly operating kitchen with a sink, refrigerator and stove and oven.[60]

2. Application of Legal Standards[61]

Pursuant to 603 CMR § 28.10(9) and because an appeal of DESE’s LEA Assignment concerns “a matter relating to the . . . education program or educational placement of a child with a disability or the provision of a free appropriate public education to the child,” the BSEA has jurisdiction over the instant matter.[62]

FPS contends that Student does not reside in Foxborough because she is homeless pursuant to McKinney-Vento and corresponding state regulations and that, as such, DESE erred in assigning programmatic and financial responsibility to FPS. Foxborough reasons that McKinney-Vento establishes a rebuttable presumption that children staying in a hotel are homeless, given that section 11434a(2) specifically includes children living in such circumstances as “individuals who lack a fixed, regular, and adequate nighttime residence.” According to FPS, DESE’s position that Student’s hotel room is a “fixed” residence contravenes the language of the Act, particularly where Massachusetts has historically utilized hotels and motels to shelter homeless families when traditional shelters have reached capacity.[63] Moreover, to the extent DESE relied on information reportedly obtained from DCF regarding Student’s living situation, DESE could not produce any written documentation regarding this information or demonstrating that a representative from DCF or DESE actually visited Father’s hotel room. In addition to the absence of documentation regarding a visit to Hotel to verify the features of Father’s unit, Father’s statement that he is not homeless notwithstanding, Foxborough cites the following as further evidence that Student is homeless: the absence of a lease or rental agreement between Father and Hotel; the failure to produce every receipt for Father’s weekly payments; and Foxborough’s own assertion, devoid of factual support in the record, that Father would not be able to locate alternative adequate accommodations (which FPS describes as a two-bedroom rental) in Foxborough for $1500 including utilities.

DESE asserts that the Department properly applied federal and state law regarding enrollment, school district responsibility, and homeless children and youth. According to DESE, it made the required fact-specific inquiry and considered the totality of the circumstances in reaching its conclusion that Student resides with Father in Foxborough and is not homeless. The information before the Department at the time of the LEA Assignment established that although Student and Father lived at Hotel, they had a fixed, regular, and adequate nighttime residence, and that their living situation did not arise from a loss of housing, economic hardship, or lack of alternative accommodations. Given this analysis, DESE contends that the BSEA should defer to its proper interpretation of its own regulations.

According to Norwood, Father is not homeless, and when Student moved from Norwood to Foxborough on or about February 3, 2025 to live with him, she became a resident of Foxborough. As such, Foxborough was, and remains, both programmatically and fiscally responsible for Student’s education as of that date.

Although Foxborough is correct that the language of McKinney-Vento includes living in a hotel as one category of “individuals who lack a fixed, regular, and adequate nighttime residence,” I do not agree that this establishes a presumption that all children living in hotels are homeless. The provision establishing these categories includes children who are “sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason,” and those who are “living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations.”[64] Here, Student was living with Mother prior to February 3, 2025, when she moved in with Father. There is no evidence that Student was removed from Mother’s custody by DCF or that Mother does not retain custodial rights regarding Student. As such, Student arguably has alternative adequate accommodations available to her.[65] Moreover, the Department concluded, based on the facts presented to it, that “Father has chosen to live in a hotel unit and that his residence is there is not due to a lack of alternative accommodations.” Notwithstanding Foxborough’s contention that Father could not afford to rent a two-bedroom apartment within its geographic boundaries, there is no evidence before me to suggest that Father has not chosen his living situation.[66]

Moreover, guided by relevant case law, I do not apply a rigid definition of “homelessness,” but instead examine the “totality of the circumstances” of Student’s living situation.[67] At the time DESE rendered its LEA Assignment, Father had been living in the same unit at Hotel for approximately 3.5 years, paying weekly rent in the amount of $375. The hotel unit includes a kitchen, which features a sink, stove, and refrigerator, and a full bathroom. Although there is only one bedroom, Student has her own bed in a separate area. DESE concluded that Student’s living situation was fixed, regular, and adequate. I agree. Father has been living in the same unit for an extended time, suggesting that Hotel is a “fixed” nighttime residence in that it appears to be securely placed and not subject to change or fluctuation.[68] Student returns to the same unit at Hotel every day, conforming to an established schedule; Hotel is therefore a “regular” nighttime residence.[69] Like the mobile home in Mount Olive and the relative’s home in Camden v. Volk, the location of Hotel is “fixed and . . . the use [is] regular because the family ha[s] lived in the same place for several years.” [70] Finally, although none of the DCF regulations described in Part III(A)(iii), above, is exactly on point (and there is no evidence before me regarding the size of Student’s sleeping space or whether the kitchen includes an oven in addition to a stove), Hotel appears to meet “Sleeping” and “Utilities, Kitchen and Bath” requirements for licensing as a foster, pre-adoptive, or kinship home for a child in DCF’s care or custody.[71] Though Student was not in DCF’s care or custody, the agency’s willingness to assist Student in relocating to Hotel also suggests that DCF found Hotel to be an “adequate” nighttime residence.[72] DESE agreed, citing the existence within the unit of a kitchen with a sink, stove, and refrigerator, a full bathroom, and separate spaces for sleeping. I find this analysis persuasive. Father’s hotel unit is sufficient for this specific requirement and equal to what is required, as Student has “a designated sleeping area and access to a kitchen and bathroom facilities, despite the sharing of rooms and limited space.”[73] Given the totality of the circumstances, I find that although Student is living with Father in a hotel, she does not “lack a fixed, regular, and adequate nighttime residence.”[74]

CONCLUSION AND ORDER

After reviewing the record in its entirety in the context of relevant statutory and case law, I conclude that Student is not homeless and that she became a resident of Foxborough on or about February 3, 2025. As such, I uphold DESE’s assignment of programmatic and financial responsibility for Student’s special education program to Foxborough as of that date.[75]

By the Hearing Officer:

/s/ Amy M. Reichbach

Dated: February 3, 2026

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[1] According to Foxborough, Student attends a separate public day school pursuant to an Individual Education Program (IEP) developed by Norwood. The name of the public day school is withheld to maintain the confidentiality of Student and Parent.

[2] The name of the Hotel is withheld to maintain the confidentiality of Student and Parent.

[3] On September 17, 2025, the Department of Children and Families (DCF) filed an Objection to and Petition to Vacate a subpoena duces tecum that had been issued to it by the BSEA pursuant to Foxborough’s request. Foxborough and DCF were unable to fully resolve the matter informally, and on October 15, 2025, Foxborough filed a second, narrower request for a subpoena duces tecum to which DCF filed an Objection on October 24, 2025. On November 10, 2025, the undersigned Hearing Officer issued a Ruling sustaining DCF’s objection and quashing Foxborough’s subpoena duces tecum.

[4] I have carefully considered all evidence presented in this matter. I make findings of fact with respect to the evidence, however, only as necessary to resolve the issues presented.

[5] An email from Lori Cimeno, Norwood’s Director of Student Services, to DESE and Foxborough, dated March 7, 2025, indicates a start date of July 3, 2023; an email from Ms. Cimeno to these and other individuals, dated March 11, 2023, specifies a start date of July 1, 2023. (F-4; D-4) Foxborough’s undated Request for Clarification of Assignment of School District Responsibility (LEA Assignment Request) includes a start date of July 2, 2023. (D-10) While I note these inconsistencies, they are minor and I need not resolve them for purposes of this Decision.

[6] An email from Ms. Cimeno to Cory Mikolazyk, Foxborough’s Director of Student Services, dated March 11, 2025, suggests that Student has been residing with Father since February 1, 2025. (F-4; D-4) DESE provided an undated letter from a DCF social worker indicating that Student “is currently residing and in the care of her father” at the address of Hotel. (D-2, D-13D; N-4) According to an email from Ms. Cimeno dated March 7, 2025, this letter was written at the end of January or beginning of February, as it was provided by Father to the out-of-district placement on February 1, 2025. (F-4, D-4) The letter appears to have been provided to DESE by Norwood. (D-13)

[7] According to the March 22, 2025 email from Ms. Cimeno referenced in note 6, supra, Norwood held a telephone conversation with Father on February 28, 2025, during which Father stated that he paid $2000 in rent per month. However, the proof of payment for rent for the week of March 7, 2025 and the letter from the Hotel owner both confirmed that Father pays $375 per week, for a total of $19,500 per year. (F-4; D-4, D-7) In its Memorandum in Support of Appeal of LEA Assignment, Foxborough contends that the proof of payment, which includes a “date in” of November 14, 2021 and a “date out” of March 16, 2025, shows that Father paid $375 on March 7, 2025, but does not prove that he pays this amount weekly.

[8] An affidavit submitted to DESE by Norwood’s Out-of-District Coordinator, Karen Milch, states that Father reported to Ms. Milch that his apartment at Hotel “includes a bedroom, working bathroom, and working kitchenette.” (D-13A; N-1) Norwood submitted to DESE an Affidavit signed by Father that described his apartment in the same way. (D-13B, D-17; N-2)

[9] Foxborough’s letter in response to DESE’s LEA Assignment Alert suggests that Foxborough enrolled Student as of March 11, 2025 (D-14), but this assertion is not supported by the balance of the evidence. Specifically, in an email to representatives from DCF, DESE, Student’s out-of-district placement, and Foxborough dated March 18, 2025, Mr. Mikolazyk wrote that Foxborough had not failed to enroll Student, but the family had been unable to provide proof of residence, and that, as such, the family should be seeking support from Norwood. On the same day, Mr. Mikolazyk informed the same individuals that he “wanted to follow up to confirm that the family has not provided any documentation to meet the residency requirements. I respectfully request that Foxborough not be included in future correspondences regarding this matter. Please take a moment to review the McKinney-Vento (MKV) advisories, as they will make you more informed and will provide additional clarity and guidance.” (D-15)

[10] DESE was subsequently provided with an IEP for Student dated 11/14/2024 to 11/14/2025 that had been accepted by Mother on 11/27/2024. (D-12)

[11] 20 U.S.C. § 1415(b)(6).

[12] 603 CMR 28.08(3)(a). Sections 3(c) and 3(d) of 603 CMR 28.08 contain certain exceptions that do not apply here.

[13] See 603 CMR 28.10(9).

[14] See M.G.L. c. 71B, § 2A (establishing the BSEA).

[15] See M.G.L. c. 76, § 5 (“Every person shall have a right to attend the public schools of the town where he actually resides . . . No school committee is required to enroll a person who does not actually reside in the town unless said enrollment is authorized by law or by the school committee”).

[16] M.G.L. c. 71B, § 3.

[17] See Salem v. Bureau of Special Educ. Appeals, 444 Mass. 476, 482 (2005); Walker Home for Children, Inc. v. Franklin, 416 Mass. 291, 295 (1993).

[18] See Massachusetts Hosp. Assoc. v. Dep’t of Med. Sec., 412 Mass. 340, 342 (1992); Walker Home, 416 Mass. at 296.

[19] 603 CMR 28.10(2)(a).

[20] See 42 U.S.C. § 11432(g)(3)(A) (for students experiencing homelessness, school districts are directed to either “continue the child’s or youth’s education in the school of origin for the duration of homelessness” or “enroll the child or youth in any public school that nonhomeless students who live in the attendance area in which the child or youth is actually living are eligible to attend”); see also Massachusetts Department of Elementary and Secondary Education, McKinney-Vento Homeless Educational Assistance – Advisories (rev. April 2018) at 5, available at https://www.doe.mass.edu/sfs/mv/advisories.docx (Department’s McKinney-Vento Guidance) (“Homeless students have the right to remain enrolled in their school of origin and receive transportation or immediately enroll in the school district where they are temporarily residing”).

[21] See 603 CMR 28.10(5)(a)(2).

[22] Id.

[23] See 42 U.S.C. §§ 11431, 11432(g).

[24] See Id. at § 11432(g)(1)(C).

[25] See Department’s McKinney-Vento Guidance at 7.

[26] Id.

[27] 42 U.S.C. § 11434a(2)(A); see Department’s McKinney-Vento Guidance at 2.

[28] Id. at § 11434a(2)(B)(i). DESE has adopted these definitions in Massachusetts. See Department’s McKinney-Vento Guidance at 7; Kantor Nir Ruling. Under McKinney-Vento, the term “homeless children and youth” also includes children and youth who “have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings;” those “living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings;” and migratory children “who qualify as homeless” because they are living in the enumerated circumstances. See 42 U.S.C. § 11434a(2)(B)(ii-iv).

[29] National Center for Homeless Education, Determining Eligibility for McKinney-Vento Rights and Services, available at https://nche.ed/gov/determining-eligibility-for-mckinney-vento-rights-and-services/ (March 2021) (NCHE) at 2, 3.

[30] Id. at 5 (Appendix A: A Guide for Determining McKinney-Vento Eligibility) (The phrase due to lack of alternative adequate accommodations can help determine whether the named living situations would meet the definition of homeless” (emphasis in original)). See Doe ex rel. Doe v. Perille, 2018 WL 5817024, at *6 (D. Mass. Nov. 6, 2018) (“Although few courts have had occasion to interpret the meaning of ‘homeless’ under the McKinney-Vento Act, the existing case law suggests that children who have alternative adequate living arrangements available to them do not qualify as homeless for purposes of the Act”).

[31] See J.S. ex rel. S.S. v. Red Clay Consol. Sch. Dist., No. CV 15-876-LPS, 2015 WL 5920316, at *2 (D. Del. Oct. 8, 2015); see also DESE Guidance on Fixed, Regular, and Adequate Housing: Identifying Family and Youth Homelessness, available at https://doe.mass.edu/sfs/mv/housing-guidance.html (May 28, 2020) (Department’s Housing Guidance) (“School enrollment is based on the student’s, not the parent’s, homelessness and where the student has been or is currently residing” (emphasis in original)).

[32] See NCHE at 7 (Appendix A).

[33] See id. (citing Merriam-Webster.com).

[34] See id.

[35] See id.

[36] Bd. of Educ. of Mount Olive v. Bd. of Educ. of Englewood, EDU 18374-17, 2018 WL 5044197 (N.J. Admin. August 23, 2018), at *4 (citing State-Operated Sch. Dist. Of Camden v. Volk, EDU4521-16, 2017 WL 1199594 (N.J. Admin. March 22, 2017), at *11).

[37] NCHE at 2. See Department’s HousingGuidance (“Living arrangements are not always clear, and certain arrangements may, simultaneously have characteristics of permanent housing and homelessness”).

[38] Mount Olive at *4; Volk at *11.

[39] See Appeal of M.M., 61 Ed Dep’t Decision No. 18019, 2021 WL 3602796 (N.Y. Educ. Dep’t July 19, 2021), at *4; Mount Olive at *5; Volk at *14; Appeal of T.J.G. ex rel. T.G., 114 LRP 39231 (N.Y. Educ. Dep’t August 18, 2014); L.C. v. Branchburg, 96 N.J.A.R.2D (EDU), 1002 (N.J. Adm.), 1996 WL 784600 (Sept. 12, 1996), at *5.

[40] See Appeal of T.J.G.

[41] Id.

[42] Id.

[43] Volk at *1, *3, *6-*7.

[44] Id. at *6, *10, *11. See id. at *12 (ALJ considered the “very lengthy period of residence, the adequacy of the living place and the regularity of occupation”). Cf. L.R. ex rel. G.R. v. Steelton-Highspire Sch. Dist., 2010 WL 1433146 (M.D. Pa. April 7, 2010) (finding that student “qualifies as a homeless student because he lacks a ‘fixed, regular, and adequate nighttime residence’ . . . and he is ‘sharing the housing of other persons due to the loss of housing, economic hardship or similar reason”).

[45] Mount Olive at *1, *5.

[46] Id. at *1-*2.

[47] Id. at *3.

[48] Id. at *1, *4.

[49] See Appeal of M.M., at *1-*3 In this case, the Commissioner overturned the school district’s “combined residency/homeless determination” that the students were no longer district residents because they were “permanently housed” at an out-of-district address. Because the petitioner and student had, at times, stayed with relatives in different locations due to the Covid-19 pandemic, the district had concluded that they “no longer resided at the hotel” within the district’s geographic boundaries. In finding that the petitioner “has met her burden of proving that the student[s are] district resident[s],” the Commissioner did not address whether the students were eligible for assistance under McKinney-Vento because the issue had not been properly raised below. See id.

[50] See Department’s Housing Guidance.

[51] Department’s Housing Guidance.

[52] NCHE at 2. See Department’s HousingGuidance.

[53] See Mount Olive at *4 (evaluation of homelessness “must include the reasons for the living conditions – including the resources and intentions of the parents or custodians”); see also id. at *1 (in determining that the family was not homeless, the ALJ considered the fact that they viewed their mobile home located on a campground as their permanent home).

[54] Volk at *12; see Department’s HousingGuidance(“Enrollment should not depend upon where the student or family intends to reside in the future”). But see Department’s HousingGuidance (“there is no time limit on homelessness. . . For example, families/students may be in a shelter for up to 24 months or longer. Doubled up situations can last for years. Families/students are considered homeless until they have acquired fixed, regular and adequate housing”).

[55] Cf. Branchburg, at *4 (discussing New Jersey statute regarding homelessness for purposes of student enrollment).

[56] See 110 CMR § 1.11.

[57] A copy of this Memorandum of Understanding can be found at https://www.publiccounsel.net/wp-content/uploads/2014/11/Memo-of-understanding-DCF-and-HCD.pdf.

[58] See DCF Policy # 23-01, Licensing of Foster, Pre-Adoptive, and Kinship Families (effective 02/27/2023), available at https://www.mass.gov/doc/licensing-of-foster-pre-adoptive-and-kinship-families/.

[59] See id.

[60] See id.

[61] I incorporate by reference the factual findings made in Part II, above.

[62] M.G.L . c. 71B, § 2A. I am unpersuaded by DESE’s argument that the BSEA may not review whether a student is homeless under McKinney-Vento when that determination is central to the BSEA’s review of a LEA Assignment issued by the Department. Among other things, DESE’s citation of Fitchburg Public Schools, Narragansett Regional School District, and DESE in its Response to Foxborough’s Hearing Request is inapposite; the Department quotes a footnote, out of context, within a decision where the Hearing Officer did review (and affirm) DESE’s determination that a student was homeless. See BSEA #12-3434 (Crane, 2012).

[63] See F-5.

[64] 42 U.S.C. § 11434a(2)(B)(i).

[65] See Department’s Housing Guidance (homelessness is based on student’s circumstances, not those of the parent or guardian). Cf. J.S. (suggesting that where parents have joint custody, homelessness cannot be predicated on a move from the home of one parent to the other, even if such move was due to the first parent’s loss of housing or economic hardship); Perille at *6 (describing J.S. as a case where children “who have alternative adequate living arrangements available to them do not qualify as homeless for the purposes of” McKinney-Vento).

[66] See Mount Olive at *2 (where family lived in mobile home on campground year-round and considered it their permanent home, ALJ concluded that children were not homeless, finding that “[i]n short, the M. family have chosen their living situation”).

[67] Mount Olive at *4; see Volk at *11; NCHE at 2; Department’s Housing Guidance.

[68] See NCHE at 7.

[69] See id.

[70] Mount Olive at *4 (citing Volk at *11).

[71] See DCF Policy #23-01.

[72] See NCHE at 7. Despite Foxborough’s argument, I am not persuaded that DCF’s policy that “children should never be removed from their parents . . . on the sole basis of homelessness,” see id., necessarily implies that DCF would assist a student not in its care or custody in securing living arrangements that amounted to homelessness. Moreover, DCF specifies that efforts the agency should make on behalf of a homeless family include efforts to provide access to facilities that allow the family to feed, bathe, and care for their children, see 110 CMR 1.11, and that homeless families might be placed in motels or hotels due to lack of family shelter availability, see MOU. These policies do not suggest that Father’s and Student’s living situation at Hotel renders them homeless; in fact, they support the oppositive conclusion.

[73] See Mount Olive at *4 (citing Volk at *11); NCHE at 7.

[74] See 42 U.S.C. § 1432(a)(2).

[75] Given my conclusion, I need not address DESE’s argument that I should defer to the Department’s interpretations of its own regulations. Although I recognize that administrative law jurisprudence generally supports this assertion, in the instant matter the same regulation on which DESE relies (603 CMR 28.10) also specifically provides for an appeal of DESE’s interpretations to the BSEA, which “shall be limited to a determination of the assigned school district and the effective date of such assignment.” See 603 CMR 28.10(9)(f).