COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Olivia[1] & Ashland Public Schools BSEA # 2615741
RULING ON ASHLAND PUBLIC SCHOOLS’ MOTION TO JOIN
This matter comes before the Hearing Officer on the Motion filed by the Ashland Public Schools (“Ashland” or “the District”) to join Westborough Public Schools (“Westborough”), to the above-noted matter. A Hearing Request was filed against the District by Parents on June 16, 2026. According to the Hearing Request, Olivia, who attends Ashland Middle School, is not making effective progress commensurate with her abilities and requires a more specialized placement to receive a free appropriate public education (FAPE). Parents requested a finding from the Bureau of Special Education Appeals (BSEA) that Olivia requires an out-of-district placement.
The Hearing was scheduled for July 21, 2026. A Recalculated Notice of Hearing was subsequently issued, as the District had not been provided the full Hearing Request by Parents, and the Hearing was scheduled for July 29, 2026.
On July 6, 2026, Ashland filed its Response to Parents’ Request for Hearing (Response) and the instant Motion to Join (Motion). In its Response, Ashland asserts that its most recently proposed individualized education program (IEP) for Olivia, dated December 5, 2025 to December 2, 2026, is reasonably calculated to provide her with a FAPE and that the BSEA should deny Parents’ request for an out-of-district placement. In its Motion, Ashland contends that Olivia’s mother lives in Ashland, her father lives in Westborough, and Parents share legal and physical custody. Although Ashland believes its IEP and proposed placement are reasonably calculated to provide Olivia with a FAPE, should Parents prevail in their request for an out-of-district placement, Westborough would share programmatic and fiscal responsibility for such placement in accordance with 603 CMR 28.10(2)(a)(2). Therefore, because complete relief cannot be granted among those who are already parties, Westborough is a necessary party under Rule I(F) of the BSEA Hearing Rules for Special Education Appeals (BSEA Hearing Rules) and should be joined.
On July 9, 2026, Westborough filed its Response to Ashland Public Schools’ Motion to Join, assenting to joinder for the reasons set forth by Ashland.
On July 13, 2026, Parents requested postponement of the Hearing for three months to permit Olivia to undergo an independent educational evaluation, funded by Ashland, and permit the Team to review it. That request was assented to and allowed for good cause, and the Hearing was scheduled for October 21 and 23, 2026.
On July 16, 2026, Parents filed their Opposition to Joinder.[2] According to Parents, Olivia lives with Mother in Ashland, where she spends eight out of every ten school nights.[3] Because Olivia’s domestic, social, and civil life is centered in Ashland, the District cannot carry its burden to show Westborough’s potential liability. Moreover, the factors outlined in BSEA Hearing Rule I(J) weigh against joinder, as Ashland, the district where Olivia resides, suffers no prejudice from Westborough’s absence because Ashland bears sole programmatic and fiscal responsibility for her and therefore bears the cost of her education; Parents would be prejudiced by joinder, as an interdistrict funding dispute would add parties, discovery, and delay; the full range of relief may be fashioned among the existing parties, as the remedies requested by Parents may be ordered in full against Ashland; and the Department of Elementary and Secondary Education (DESE) is available as an alternative forum for assignment of fiscal responsibility.[4]
On July 23, 2026, Ashland and Westborough filed a joint Response to the Parent’s [sic] Opposition to the Motion to Join, arguing that the regulations do not contain a “pillow count” or threshold on the number of school days that determines residence. Because Parents share legal and physical custody of Olivia and she spends the equivalent of one school night per week with Father, she lives with both parents during the school year. Therefore, if the Hearing Officer finds that Olivia requires an out-of-district placement, the two districts would share fiscal and programmatic responsibility for that placement, and complete relief could not be granted in the absence of Westborough. Furthermore, Westborough would be prejudiced if it were not permitted to defend against Parents’ request for an out-of-district placement.
As none of the Parties requested oral argument on the Motion, and as formal oral argument would not advance my understanding of the issues involved, this Ruling is issued without a hearing, pursuant to Rule VI(D) of the BSEA Hearing Rules. For the reasons set forth below, Ashland’s Motion is hereby ALLOWED.
I. RELEVANT FACTUAL BACKGROUND
The following facts, which are drawn from the pleadings, are not in dispute and are taken as true for the purposes of this Ruling. These facts may be subject to revision in subsequent proceedings.
1. At all relevant times, Mother has lived in Ashland, Massachusetts.
2. At all relevant times, Father has lived in Westborough, Massachusetts.
3. Parents share legal and physical custody of Olivia.
4. Olivia attends Ashland Public Schools. When she sleeps at Mother’s house on a school night, she takes the bus to school. When she sleeps at Father’s house on a school night, Father drives her to school.
5. In a typical two-week period, Olivia spends ten of every fourteen nights, including eight of every ten school nights, with Mother.
6. Twice per month, Olivia stays with Father in Westborough from Thursday afternoon through Monday morning.
7. Olivia participates in dance in Ashland. She does not participate in any extracurricular activities in Westborough.
II. DISCUSSION
A. Legal Standards
To determine whether joinder of Westborough is warranted in the instant case, I consider both the standard for joinder and the substantive standards regarding the obligations of school districts where a student’s parents reside in two different communities. As the party seeking joinder, Ashland has the burden of proof to demonstrate Westborough’s potential liability for an out-of-district placement.[5]
i. Joinder
Pursuant to the BSEA’s joinder rule, set forth in BSEA Hearing Rule I(J):
Upon written request of a party, a Hearing Officer may allow for the joinder of a party in cases where complete relief cannot be granted among those who are already parties, or if the party being joined has an interest relating to the subject matter of the case and is so situated that the case cannot be disposed of in its absence. Factors considered in determination of joinder are: the risk of prejudice to the present parties in the absence of the proposed party; the range of alternatives for fashioning relief; the inadequacy of a judgment entered in the proposed party’s absence; and the existence of an alternative forum to resolve the issues.
Whether complete relief may be granted in Westborough’s absence, and whether Westborough has an interest relating to the subject matter of the case and is so situated that the case cannot be disposed of in its absence, depend on whether Westborough could be found to bear fiscal or programmatic responsibility for Olivia. Legal standards regarding school district responsibility for students residing therein guide this determination.[6]
ii. School responsibility and student residency
Generally, school districts are programmatically and fiscally responsible for the special education and related service needs of eligible students based on residency and enrollment, as long as their parents reside in Massachusetts.[7] When an eligible student who requires an in-district placement to implement his IEP lives with both parents during the school year, irrespective of school vacation periods, and the student’s parents live in two different Massachusetts school districts, the school district where the student is enrolled is programmatically and fiscally responsible for that student.[8] However:
[w]hen a student who requires an out-of-district placement to implement his or her IEP lives with both of his or her parents during the school year, irrespective of school vacation periods, and the parents live in two different Massachusetts school districts, the school districts where the parents reside shall be equally responsible for fulfilling the requirements of 603 CMR 28.00.[9]
As such, the important question for determining school district responsibility when a student requires (or may require) an out-of-district placement is whether the student lives with both parents during the school year.[10] One factor in this analysis is whether parents maintain joint custody of the child, or whether one parent has been granted sole custody.[11] Decision-makers assigning school district responsibility for a child generally have considered physical custody, rather than legal custody, in determining a child’s residence.[12] However, a “court-ordered custody arrangement is not an absolute determinant of a child’s ‘actual residence.’”[13] In determining whether responsibility for an out-of-district placement should be shared between two school districts, judges and BSEA Hearing Officers have also considered whether one parent’s home serves as the student’s primary residence and the center of the child’s domestic and civil life.[14]
In 2018, DESE clarified this issue through Administrative Assistance Advisory SPED 2018-3. Appendix B of the Advisory specifies that responsibility for an out-of-district placement for a student who spends time in the homes of two parents who reside in different school districts is not shared if the student “is with one parent only on weekends or during school vacation periods.”[15] This Advisory comports with BSEA decisions concluding that only one school district bears responsibility for a student who spends every school night with one parent and leaves for school each morning from that parent’s home.[16] The Hearing Officer upheld DESE’s assignment of school district responsibility to the town where student’s mother lived, in one such case, noting that “100% of [Student]’s school-related preparation and transportation occurs” in that town.[17] Additional court and BSEA cases have, consistent with the Advisory, found the districts where both parents reside to be responsible for a student who spends school nights (nights preceding school days) with both parents, even if the majority of school nights is spent with one parent.[18]
B. Application of Legal Standards
With these standards in mind, I consider Ashland’s Motion. As explained above, Ashland disputes the need for an out-of-district placement for Olivia. The District submits, however, that because Parents share custody of Olivia and she lives with both of them during the school year, if Parents were to prove at Hearing that Ashland’s proposed placement is not reasonably calculated to provide Olivia with a FAPE, Westborough would share with Ashland the cost of any private placement I might order.[19] According to Ashland, Westborough is therefore a necessary party and should be joined.[20]
Under BSEA Hearing Rule I(J), joinder of Westborough is proper if complete relief cannot be achieved among the existing parties (Parents and Ashland), or if Westborough has an interest in the subject matter of the case and its absence would impede resolution. To make this determination, I consider, among other things, the risk of prejudice to Parents and to Ashland if Westborough is not joined; the potential alternatives for crafting relief; the insufficiency of a judgment rendered without Westborough; and the availability of an alternative forum to resolve the dispute.[21]
These considerations – in particular, whether Westborough has an interest in the subject matter of this case, whether, in the absence of joinder, Ashland bears any risk of prejudice and whether complete relief can be granted – turn on whether Westborough shares fiscal and programmatic responsibility for Olivia’s education. Under 603 CMR 28.10(2)(a)(2), because Olivia’s parents live in two different school districts, if I find that she requires an out-of-district placement and that she lives with her mother only, Ashland would be solely responsible, but if I find that she lives with both of her parents during the school year, irrespective of school vacation periods, Ashland and Westborough are equally responsible for the cost of that placement.[22]
In this case, although Olivia spends most school nights with Mother, Parents share both legal and physical custody. Unlike the scenario described in Administrative Assistance Advisory SPED 2018-3 and many of the cases where BSEA hearing officers concluded that a student lived in one school district for purposes of joinder or school district responsibility, Olivia’s time with Father is not limited to weekends, and she does not leave for school from Mother’s house every day.[23]
For these reasons, should I find, after an evidentiary hearing, that Olivia requires an out-of-district placement to access a FAPE, Ashland and Westborough will share fiscal and programmatic responsibility for such placement. Westborough, therefore, has an interest in this matter and its absence would prevent the case from being disposed of, as complete resolution could not be accomplished among the existing parties.
CONCLUSION AND ORDER
1) Ashland’s Motion to Join Westborough is hereby ALLOWED.
2) The Hearing will take place over a virtual platform on October 21 and 23, 2026, beginning at 10:00 AM each day.
By the Hearing Officer:
/s/ Amy Reichbach
Amy M. Reichbach
Dated: August 14, 2026
Footnotes
[1] “Olivia” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.
[2] Parents requested, and were allowed, an extension of time to respond, as they had recently retained an attorney.
[3] For purposes of this Ruling, I use the term “school night” to mean the night preceding a school day.
[4] See 603 CMR 28.10(8).
[5] See In Re: Fall River Public Schools (Ruling on Joinder), BSEA # 055383 (Crane, 2005).
[6] See 603 CMR 28.10.
[7] See 603 CMR 28.10(2)(a)(1); see also George H. and Irene L. Walker Home for Children, Inc. v. Franklin, 416 Mass. 291, 294 (1993) (“General Laws c. 71B ‘requires every city, town or school district: (1) to identify the school age children residing in that district who have special needs; (2) to diagnose and evaluate the educational needs of such children; (3) to propose a special education program to meet those needs; and (4) to provide or to arrange for the provision of such special education programs’” (internal citation omitted)).
[8] See 603 CMR 28.10(2)(a)(1).
[9] 603 CMR 28.10(2)(a)(2).
[10] See id.; see also In Re: Student & Waltham Public Schools (Ruling on Waltham Public Schools’ Motion to Join Belmont Public Schools), BSEA # 2208477 (Mitchell, 2022) (looking beyond terms of custody agreement to child’s actual living arrangements in joinder determination); In Re: Lincoln Sudbury Regional School District, Department of Elementary and Secondary Education and Lexington Public Schools, BSEA # 123149 (Figueroa, 2011) (upholding determination made by DESE that the school district where Student’s mother resided bore sole fiscal and programmatic responsibility, where, “immediately prior to entering Perkins, Student lived most of the time in Lincoln with his mother,” who had sole physical custody).
[11] See In Re: Kahlil v. Newton Public Schools (Ruling on Newton Public Schools’ Motion to Join Medford Public Schools), BSEA # 1901552 (Byrne, 2019) (joinder proper where parents, who resided in two different school districts, shared legal and physical custody and participated equally in Team meetings and educational decision-making, though Medford argued that student had never “lived” there); Lincoln-Sudbury Regional School District (upholding District’s assignment of sole fiscal and programmatic responsibility to school district where mother lived; mother had sole physical custody and educational decision-making authority pursuant to a Stipulation for Temporary Orders filed in the Probate and Family Court).
[12] See, e.g., Walker, 416 Mass. at 295 (“The domicil, or residence, of a minor child generally is the same as the domicil of the parent who has physical custody of the child”); In Re: Westborough Public Schools & Department of Elementary and Secondary Education & Middleborough Public Schools, BSEA ## 120437, 120551, and 117865 (Byrne, 2011) (under order of the Probate Court, parents shared legal custody, but the parenting plans specified that mother was “the primary parent and her residence was to be considered the child’s home”; BSEA confirmed LEA assignment of sole programmatic and fiscal responsibility to school district where mother resided); Lincoln-Sudbury Regional School District (emphasizing fact that mother had sole physical custody of student at the time student was unilaterally placed).
[13] Westborough Public Schools; see also Waltham Public Schools (although custody agreement provided that student lived with mother for purposes of residency, hearing officer joined school district where father resided based on actual division of student’s time between parents’ homes); In Re: Salem Public Schools, Department of Education, Marblehead Public Schools, BSEA # 024739 (Sherwood, 2003) (upholding joint assignment of school district responsibility where court-ordered agreement assigning physical custody to mother – and joint legal custody – had not been modified, but parents demonstrated that as of eight years later, they shared physical custody).
[14] See Walker, 416 Mass. at 295; Westborough Public Schools; Lincoln-Sudbury Regional School District.
[15] Administrative Assistance Advisory SPED 2018-3, Appendix B, Summary of Assignment of School District Responsibility Under 603 CMR 28.10 – General Provisions (corrected 1/05/2023); see 603 CMR 10(2)(a)(2).
[16] See, e.g., In Re: Elijah (Ruling on Watertown Public Schools’ Motion to Join Maynard Public Schools), BSEA # 2424341 (Reichbach, 2024) (denying joinder of school district of father’s residence where “aside from holidays and school vacations, Elijah spends every other weekend with his father in Maynard, and the remainder of his time with his mother in Watertown”); Westborough Public Schools (finding Mother’s district programmatically and fiscally responsibility for special education services where student spent every school night at her home); In Re: Fall River (denying joinder of district where father lived, as the student slept at father’s home only Friday and Saturday nights).
[17] In Re: Westborough.
[18] See Ames v. Town of Wayland, 32 Mass L. Rptr. 324, 2014 WL 5307908 (Super. Ct 2014) (where parents shared physical custody, student spending three of ten school nights in Wayland was sufficient to establish residency); see also Waltham Public Schools (joinder allowed where student spent two school nights per week with one parent).
[19] I note that although Ashland did not make this corollary argument, if I were to join Westborough and to find that the District’s IEP and placement were not reasonably calculated to provide Olivia with a FAPE, I could consider any in-district program offered by Westborough as an alternative.
[20] See In Re: Student & District K Public Schools, BSEA # 2405155 (Mitchell, 2024) (“Joinder of North Andover at this time is the necessary way to ensure that all potentially responsible parties are established and involved in providing Student with a FAPE, as FAPE is ultimately to be determined”); see also In Re: Khalil (joining Medford to mitigate the “risk of reasonably foreseeable prejudice” to the existing parties and to ensure “a more efficient use of the resources of all parties, and of the BSEA”).
[21] See BSEA Hearing Rule I(J).
[22] See 603 CMR 28.10(2)(a)(2).
[23] Cf. SPED 2018-3; In Re: Elijah; Westborough Public Schools.