# S.M. v. CHICHESTER SCHOOL DISTRICT

> District Court, E.D. Pennsylvania · October 7, 2024

URL: https://www.frixlaw.com/law-library/cases/10667291

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** October 7, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10667291

## How later opinions describe it (automated extraction)

- holding school district is responsible for “residential placement that is a necessary predicate for learning” but not “the provision of services that are unrelated to learning skills.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

S.M., by and through his parents, :
Michael C. and Danielle C., :
Plaintiffs, :
: CIVIL ACTION
: No. 21-4266
v. :
:
CHICHESTER SCHOOL :
DISTRICT, :
Defendant. :

October 7, 2024 Anita B. Brody, J.

MEMORANDUM

Over three years have passed since S.M.—a now-seventeen-year-old boy with
severe autism and intellectual disabilities—and his parents brought this action against
Chichester School District (“Chichester”). Over two years have passed since I held that
his parents are likely to establish that S.M. is entitled to a residential educational placement
when this matter is adjudicated on the merits and, in the meantime, will suffer irreparable
harm without one. Mem. 6-7, ECF No. 21. Although Chichester has referred S.M. to
fifteen different residential educational placements and S.M. has been accepted to four, the
parties have yet to agree on any of them. With each day of delay, S.M. continues to be
harmed and gets one step closer to aging out of his entitlement to a free appropriate public
education. I have therefore ordered Chichester to secure and fund S.M.’s residential
educational placement at the Melmark School. Order, ECF No. 154.
I. BACKGROUND

S.M. is a seventeen-year-old boy whose autism and intellectual disabilities make it
impossible for him to learn in a regular classroom. Decl. of Danielle Ciavarelli ¶¶ 3-5. He
requires assistance to dress himself, shower, use the bathroom, and keep himself safe. Id.
¶ 4; Dep. of Kristen Lefevre 49, ECF No. 9-11. S.M.’s parents cannot provide for his needs
by themselves, and when S.M. has lived at home, he has been hospitalized multiple times
because of concerns for his safety and the safety of his family. Dep. of Danielle Ciavarelli
655-58, ECF No. 9-7. In the past, S.M. has made progress only while being educated in a

residential facility. Id. at 659-61.
In August 2020, S.M.’s parents moved to Chichester School District and requested
that Chichester provide S.M. with an individualized educational program (“IEP”) that
included a residential educational placement. Decl. of Danielle Ciavarelli ¶ 8-9. Instead,
Chichester issued an IEP that provided S.M. only with a day program. Id. ¶ 10; Dep. of

Danielle Ciavarelli 681, ECF No. 9-7. Accordingly, since September 2021, S.M. has (1)
lived in a medical residential treatment facility (“RTF”)1 at Elwyn; and (2) attended school

1 The terms “RTF” and “residential educational placement” are not interchangeable. See Hearing
Officer Decision 19, ECF No. 9-3. An RTF is a medical placement “prescribed by non-educational
personnel for non-educational purposes” and is funded either by a child’s parents or social services
agencies. Id. By contrast, a residential educational placement one of the “continuum of alternative
placements” a school district must offer qualifying students under the IDEA. 34 C.F.R. § 300.115.
Residential educational placements can include “hospitals or institutions.” 20 U.S.C. § 1401(16).
However, when a student requires such a placement, a school district is only obliged to pay for the
costs associated with “non-medical care and room and board” that are “necessary to provide special
education and related services.” 34 C.F.R. § 300.104; see also Kruelle v. New Castle Cnty. Sch.
Dist., 642 F.2d 687, 693 (3d Cir. 1981) (holding school district is responsible for “residential
placement that is a necessary predicate for learning” but not “the provision of services that are
unrelated to learning skills.”).
at the Delaware County Intermediate Unit. Decl. of Danielle Ciavarelli ¶¶ 25, 28, 32, 34,
35. S.M.’s medical and educational programming are not coordinated; as a result, he has

struggled to develop basic life skills. Id. ¶¶ 29-30. Although S.M.’s parents could remove
him from Elwyn’s RTF at any time, they have not done so because without a residential
educational placement, “this would only throw him back into a crisis situation.” Id. ¶ 31.
II. PROCEDURAL HISTORY

In September 2021, S.M.’s parents sued Chichester, alleging that Chichester had
violated the Individuals with Disabilities Education Act and Section 504 of the
Rehabilitation Act by failing to provide S.M. a free appropriate public education. Compl.,
ECF No. 1. In February 2022, S.M.’s parents moved for a preliminary injunction requiring
Chichester to secure a residential educational placement for S.M. Pls.’ Mot. for Prelim.
Inj., ECF No. 10. Chichester opposed the motion, arguing that S.M. did not need a
residential educational placement to receive a free appropriate public education. Def.’s

Resp., ECF No. 18. In March 2022, I granted S.M.’s motion and ordered Chichester:
to make all necessary referrals for residential educational
placement for purposes of S.M.’s [free appropriate public
education], in full consultation with parents; make all necessary
arrangements to secure such placement and authorize the
necessary funding; and plan for and execute a reasonable and
appropriate plan for transitioning S.M. from the [residential
treatment facility] where he currently resides, to the residential
educational placement the parties mutually select, as soon as
practicably possible.

Order, ECF No. 22; see also Mem. Regarding Mot. for Prelim. Inj., ECF No. 21. In April
2022, Chichester appealed and moved for a stay pending appeal. See Notice of Appeal,
ECF No. 24; Mot. for Recons. or Stay, ECF No. 23.2 In June 2022, I denied Chichester’s
motion. S.M. by & through Michael C. v. Chichester Sch. Dist., 2022 WL 2134165, at *2-

3 (E.D. Pa. June 14, 2022).
In June 2022, Chichester sent a referral to the Shorehaven School in Elkton,
Maryland, a nearby school that S.M.’s parents believed could meet S.M.’s needs. Def.’s
Resp. to Mot. for Contempt Ex. C, at 2, ECF No. 37-3 (Chichester’s referral to
Shorehaven); Ex. B, at 1, ECF No. 37-2 (email noting Shorehaven was “only 40 minutes
away” from S.M.’s parents and “appear[ed] to be a high quality program.”). In September

2022, Shorehaven offered S.M. a residential educational placement. Pls.’ Resp. to Mot. to
Dissolve the Prelim. Inj. Ex. A, at 2, ECF No. 46-1 (Shorehaven acceptance letter). On
December 2, 2022—after Chichester refused to fund the placement because it was out-of-
state—Shorehaven withdrew its offer. Pls.’ Resp. to Mot. to Dissolve the Prelim. Inj. 4,
ECF 46; see also Ex. A, at 3, ECF No. 46-1 (email from Shorehaven’s Deputy Director of

Programs withdrawing offer).
In late December 2022, S.M. was accepted to the Elwyn Children’s Residential
Treatment and Learning Center, in Elwyn, Pennsylvania. Def.’s Mot. to Dissolve Prelim.
Inj. 2, Ex. A, ECF No. 43. Chichester notified S.M.’s parents of the acceptance in early

2 In September 2024, the Court of Appeals for the Third Circuit affirmed the March 2022 order
issuing the preliminary injunction. See S.M. by & through Michael C. v. Chichester Sch. Dist.,
No. 22-1612, 2024 WL 4262788 (3d Cir. Sept. 23, 2024).
January 2023 and issued a Notice of Recommended Educational Placement (“NOREP”)3
at Elwyn in March 2023. See id. After touring the proposed placement, S.M.’s parents

objected to it on the ground that it was no different from Elwyn’s RTF “where he h[ad]
been languishing.” Pls.’ Resp. to Mot. to Dissolve the Prelim. Inj. 2, ECF No. 46; see also
Ex. C, at 7, ECF No. 46-3 (formal objection to NOREP).4 Notwithstanding S.M.’s parents’
objection, Elwyn’s offer remained open.5
In May 2023, Shorehaven indicated that it may be able to extend S.M. another offer.
Pls.’ Emergency Mot. to Enforce Prelim. Inj. Ex. A, at 1, ECF No. 49-2. In early August

2023, S.M.’s parents moved to enforce the preliminary injunction, requesting that
Chichester be ordered to send an updated referral to Shorehaven. Pls.’ Emergency Mot. to
Enforce Prelim. Inj., ECF No. 49. Chichester opposed the motion. Chichester was
“skeptical as to how all services [at Shorehaven could] be educational”—even though
Shorehaven indicated they were—given that Shorehaven “only has educational

3 The Individuals with Disabilities Education Act (“IDEA”) requires that parents of a student with
disabilities receive prior written notice before a school “proposes to initiate or change” the
student’s educational placement. 20 U.S.C. § 1415(b)(3)(A). In Pennsylvania, the form used to
provide this notice is called a NOREP. T.R. v. Sch. Dist. of Philadelphia, 223 F. Supp. 3d 321,
325 (E.D. Pa. 2016).
4 The record shows that S.M.’s mother filed two complaints regarding the quality of care,
programming, and staffing at Elwyn’s RTF: one in April 2022, and another in April 2023. See
Pls.’ Resp. to Mot. to Dissolve the Prelim. Inj. Ex. B, at 2, ECF No. 46-2 (April 2022 complaint,
explaining how S.M. returned home with a “broken skin and bruising” on his shoulder after
another child bit him—an incident that Elwyn’s staff knew had happened but never reported to
S.M.’s parents); id. at 5 (April 2023 complaint, detailing how S.M.’s mother came to pick him up
at 1:00 pm and found him asleep and soaked in urine).
5 Chichester issued the same NOREP in March 2024, to which S.M.’s parents objected on the same
grounds. Pls.’ Letter, Appx. Attachment A, at 1-5, ECF No. 152-2 (March 2024 NOREP); id. at
6 (objecting because “[t]his is the same RTF placement where [S.M.] has been residing since
September, 2021”).
programming for 220 days per year,” and Chichester therefore disagreed to fund S.M.’s
placement. Def.’s Resp. to Emergency Mot. 3, ECF No. 53. Shortly thereafter,

Shorehaven retracted its potential offer, so I denied the motion as moot. Order, ECF No.
55.
As of August 2023, progress toward securing S.M.’s residential educational
placement had stalled. The parties thus agreed to refer the case to an educational consultant
who could find and pursue additional placement options. They mutually selected Mindy
Goodman. Order, ECF No. 55; see also Joint Status Rep., ECF No. 65 (reporting that

Goodman was “approved by the Chichester School District Board of Directors to complete
an evaluation of [S.M.’s] placement needs[.]”).
In November 2023, S.M. received an offer from the Shrub Oak International School
in Mohegan, New York, which Goodman approved. See Nov. 15, 2024 Conference Tr.
2:12-17, ECF No. 96; Jan. 24, 2024 Conference Tr. 4:6-8, ECF No. 97. On January 26,

2024, I ordered Chichester to facilitate S.M.’s placement at Shrub Oak. Order, ECF No.
76. One week later, Chichester moved for reconsideration of that order and to remand the
case to the Pennsylvania Office for Dispute Resolution, arguing that “critical new
information” had come to light suggesting that S.M. no longer needed a residential
educational placement. Def.’s Mot. for Recons. 4, ECF No. 88. S.M.’s parents opposed

Chichester’s motion. Pls.’ Resp. to Mot. for Recons., ECF No. 89. After conferencing
with the parties, I vacated the Shrub Oak order and appointed Dr. Mary Lazar to conduct
an independent, updated evaluation of S.M. See Order, ECF No. 91 (placing Shrub Oak
order in suspense); Feb. 20, 2024 Conference Tr. 4:1-8:9, ECF No. 119 (outlining efforts
to identify and appoint an appropriate psychologist); Order, ECF No. 112 (appointing Dr.
Lazar); Order, ECF No. 117 (granting Chichester’s motion for reconsideration, denying its

motion for remand, and vacating the Shrub Oak order).
On July 17, 2024, Dr. Lazar filed her report, and I ordered the parties to meet and
confer and submit a joint update in advance of a status conference set for August 20, 2024.
See Report, ECF No. 132; Order, ECF No. 133. Meanwhile, on August 7, 2024, S.M. was
offered a residential educational placement at Melmark, located in Berwyn, Pennsylvania.
See Letter, ECF No. 138.6 After learning of the offer, Chichester asked me to stay the

status conference until after the Court of Appeals for the Third Circuit heard argument on
their appeal of the March 2022 preliminary injunction order. Def.’s Letter, ECF No. 139.
Because Melmark’s offer was set to expire on August 28, 2024, I declined to do so. See
Pls.’ Letter 2, ECF No. 140 (noting deadline for Melmark offer); but see Order, ECF No.
154 (deferring further action until after September 4, 2024 argument).

On August 20 and 21, 2024, I held hearings to discuss Dr. Lazar’s report and—
hopefully, finally—facilitate S.M.’s residential educational placement at Elwyn or

6 Pennsylvania maintains a list of “approved private schools” that provide “specific special
education program[s]” approved by the Secretary of the Department of Education and are “thereby
eligible to receive payments for tuition, or tuition and maintenance, from funds of the school
district or the Commonwealth, or both.” 22 Pa. Code. § 171.11. The Melmark School’s “7-day
residential” program and Elwyn Davidson’s day school program are both included on the most
recent list. See COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF EDUCATION, Directory of
Approved Private Schools & Chartered Schools for the Deaf and the Blind 26-27 (May 2024)
[hereinafter “APS Directory”], https://www.education.pa.gov/Documents/K-
12/Special%20Education/APS%20Directory.pdf (Melmark); id. at 9 (Elwyn). Goodman did not
recommend either program, but only because they not have any openings at the time she was
researching and compiling her recommendations. See Aug. 21, 2024 Hr’g Tr. 65:17-66:8, ECF
No. 149 (Goodman testifying to the same).
Melmark. The parties presented testimony from S.M.’s mother, Dr. Lazar, Goodman, and
representatives from both programs. Aug. 20, 2024 Hr’g Tr., ECF No. 148; Aug. 21, 2024

Hr’g Tr., ECF No. 149. The parties then informally briefed their respective positions.
Def.’s Status Report, ECF No. 151; Pls.’ Letter, ECF No. 152.
III. DISCUSSION

The Individuals with Disabilities Education Act (“IDEA”) “offers States federal
funds to assist in educating children with disabilities.” Endrew F. ex rel. Joseph F. v.
Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 390 (2017) (citing 20 U.S.C. § 1400 et seq.).7
In exchange for those funds, States pledge to provide every qualifying child a “free
appropriate public education”8 through a uniquely tailored “individualized education
program” (“IEP”). 20 U.S.C. §§ 1401(9), 1412(a)(1). “To meet its substantive obligation
under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make
progress appropriate in light of the child’s circumstances.” Endrew F., 580 U.S. at 399.

An IEP need not be “ideal,” id., or “incorporate every program requested by the child’s
parents,” Ridley Sch. Dist. v. M.R., 680 F.3d 260, 269 (3d Cir. 2012), to be satisfactory.
Rather, an IEP must be “likely to produce progress, not regression or trivial educational

7 Pennsylvania receives these funds and thus is subject to the IDEA’s requirements. It has also
adopted related federal regulations by incorporation by reference. 22 Pa. Code. § 14.102(a)(1)-
(2).
8 A “free appropriate public education” includes both “special education” and “related services.”
20 U.S.C. §§ 1401(9) (defining “free appropriate public education”), (26)(A) (“related services”),
(29) (“special education”). “Special education” is “specially designed instruction . . . to meet the
unique needs of a child with a disability, including instruction conducted in the classroom, in the
home, in hospitals and institutions, and in other settings.” Id. § 1401(29)(A); 34 C.F.R. §
300.39(a)(1)(i). “Related services” are the support services “required to assist a child . . . to benefit
from” that instruction. 20 U.S.C. § 1401(26)(A); 34 C.F.R. § 300.34(a).
advancement.” K.D. by & through Dunn v. Downingtown Area Sch. Dist., 904 F.3d 248,
254 (3d Cir. 2018) (quoting Ridley, 680 F.3d at 269); see also T.R. v. Kingwood Twp. Bd.

of Educ., 205 F.3d 572, 577 (3d Cir. 2000) (“[A] satisfactory IEP must provide ‘significant
learning’ and confer ‘meaningful benefit.’”) (internal citation omitted).
A. S.M. still requires a residential educational placement.

Chichester maintains, as it has since day one, that S.M. does not need a residential
educational placement to receive a free appropriate public education. See Def.’s Status
Report 3, ECF No. 151. S.M.’s parents and Dr. Lazar disagree. Pls.’ Letter 2, ECF No.
152 (“S.M. requires a residential educational placement.”); Report 3, ECF No. 132
(concluding “[S.M.’s] needs would most appropriately be met by a residential educational
placement specialized for students with developmental disabilities, including autism and
intellectual disability.”).9 So too do I.

The record suggests that S.M.’s behavior may have improved since I issued the
injunction in March 2022. See Report 2, ECF No. 132 (“[D]ata and anecdotal report[s]
from both his school and residential placements consistently pointed to a pattern of reduced
frequency of concerning behaviors (e.g., disruption, noncompliance, and sexualized
behavior)”); but see Aug. 20, 2024 Hr’g Tr. 41:8-43:20 (S.M.’s mother explaining how his
problematic behaviors “spike” when he comes home for longer than a night). Nonetheless,

the record also makes clear that S.M. still struggles with “basic self-help and social skills”

9 In affirming the March 2022 order granting a preliminary injunction, the Court of Appeals for
the Third Circuit also concluded that “the record support[s] a finding that placement at a residential
educational facility is necessary for S.M. to receive a [free appropriate public education].” S.M.
by & through Michael C., 2024 WL 4262788, at *1.
such as toileting, showering, brushing his teeth, dressing, feeding himself, and
communicating. Kruelle, 642 F.2d at 693 (“[T]he concept of education is necessarily

broad. . . Where basic self-help and social skills such as toilet training, dressing, feeding
and communication are lacking, formal education begins at that point.”); Report 30-33,
ECF No. 132 (S.M.’s test results). S.M. can only develop these skills in a program that
provides “uniformity and consistency across school and residential settings.” Report 3,
ECF No. 132. For these reasons, I find that S.M.—who only has four years left to learn
how to function in everyday life—requires a residential educational placement now more

than ever. See, e.g., id. at 2 (“Given that [S.M.] has four years remaining in school, it is
absolutely essential to capitalize on his improved behavior and availability for an even
higher level of intensive programming to meet areas of need in communication, adaptive
skills, behavior, and transition planning.”); Aug. 20, 2024 Hr’g Tr. 86:12-87:10 (Dr. Lazar
testifying to the same).

B. Chichester’s proposed placement at Elwyn does not satisfy its
substantive obligations under the IDEA.

Assuming S.M. does require such a placement, Chichester contends that the Elwyn
residential educational placement—under which S.M. would attend school at Elwyn’s
Davidson School and live at Elwyn’s Residential Center—will provide a free appropriate
public education. See Def.’s Status Rep. 12-19, ECF No. 151. S.M.’s parents disagree.
They argue that Elwyn’s Residential Center “is the same” as the Elwyn residential
treatment facility where S.M. has languished for the past three years; accordingly, Elwyn
cannot provide a free appropriate public education no matter what services S.M. may
receive during the day at Elwyn Davidson. Pls.’ Letter 3, ECF No. 152.
Based on the record, it is unclear whether Elwyn’s Residential Center and its
residential treatment facility are, in fact, different.10 Chichester has explained that its

proposed residential educational placement would involve “transitioning S.M. from the
RTF in which he reside[s] to a different bed in the same facility but pursuant to a different
program.” Def.’s Mot. to Dissolve the Prelim. Inj. 4, ECF No. 43; see also Def.’s Status
Rep. 3, ECF No. 151 (“[T]he District has identified the Elwyn residential educational 24/7
IEP placement (not the current Elwyn residential treatment facility, a medical placement)

as an offer of a free appropriate public education (FAPE) . . . .”).
Even assuming Chichester’s proposed residential educational placement is different
from S.M.’s current medical placement, nothing in the record suggests that Chichester’s
proposed placement at Elwyn is reasonably calculated to enable S.M. to make appropriate

10 Elwyn’s website explains that the Residential Center “provides intensive therapeutic
intervention services to children and adolescents ages 6-21 with autism spectrum disorder,
experiencing acute behavioral challenges, and exhibiting resistance to treatment.” Children’s
Behavioral Health Services: Services Tailored for Autism Spectrum Disorder—Addison Hines
Children’s Residential Treatment & Learning Center, Elwyn,
https://www.elwyn.org/services/children-s-behavioral-health-services (last visited Oct. 7, 2024);
see also Def.’s Mot. to Dissolve Prelim. Inj. Ex. A, ECF No. 43 (acceptance letter from Crystal
Iorizzo, the Director of Clinical Services at Elwyn’s Residential Center, noting that S.M. “meets
the inclusionary clinical requirements for acceptance” and describing the Center as a “treatment
facility specifically designed to treat children/adolescents on the autism spectrum”). A prior
version of Elwyn’s website, excerpted in the administrative record, describes Elwyn’s RTF using
identical language. See Administrative Record from the Office of Dispute Resolution Ex. 15, at
27, ECF No. 9-15. Likewise, when discussing S.M.’s proposed residential educational placement
at Elwyn, Joseph Flynn—the Assistant Principal of the High School Program at Elwyn
Davidson—and Chichester’s counsel focused on collaboration between Elwyn Davidson and the
RTF and made no mention of the Residential Center. See Aug. 21, 2024 Hr’g Tr. 81:19-85:14,
ECF No. 149.
progress. To the contrary: in the two NOREPs Chichester issued recommending S.M.’s
placement at Elwyn, Chichester all but admitted that it procured the placement only to

satisfy the March 2022 preliminary injunction—not because it believed that Elwyn could
meet S.M.’s unique needs. See Def.’s Mot. to Dissolve Prelim. Inj. 2, Ex. A, ECF No. 43
(March 2023 NOREP, explaining that Chichester was proposing a residential educational
placement at Elwyn “[p]ursuant to a Court order dated March 24, 2022”); Pls.’ Letter,
Appx. Attachment A, ECF No. 152-2 (March 2024 NOREP, stating same); Ridley, 680
F.3d at 275 (A NOREP is “properly considered part of [a student’s] overall educational

plan.”).
Chichester’s lackluster justification notwithstanding, other evidence shows that
Elwyn cannot provide the “special education” and “related services” S.M. requires under
the law. 20 U.S.C. §§ 1401(26), (29). For example, Joseph Flynn—the Assistant Principal
of the High School Program at Elwyn Davidson—testified that S.M.’s math instruction

would be “focus[ed] on vocational math, meaning that we want him to understand place
value, so he has a thorough understanding of money.” Aug. 21, 2024 Hr’g Tr. 81:14-16,
ECF No. 149. As detailed in Dr. Lazar’s report, S.M. currently receives the same type of
math instruction at the Delaware County Intermediate Unit, and it is a “poor match” for
someone who has the problem-solving and language skills of a toddler between the ages

of 2 of 3. Report 5, ECF No. 132; see also id. at 25 (S.M.’s personal care assistant
explaining that S.M. “doesn’t understand anything” in math class so “he mostly sits on a
beanbag chair, and she does the math for him”), 26-27 (describing math class where S.M.
struggled to distinguish coins and failed to complete a place value worksheet). Giving
S.M. more of the same will at best produce “trivial educational advancement,” and at worst,
“regression”—neither of which are countenanced under the IDEA. K.D., 904 F.3d at 254

(internal citation omitted). And though Flynn explained that “life skills” would “really
[be] the focus” of S.M.’s programming at Elwyn’s Residential Center, no one from Elwyn
could testify as to what that would look like in practice. See Aug. 21, 2024 Hr’g Tr. 84:22-
85:14, ECF No. 149. S.M.’s Residential Center admission letter says that the Center’s
“focus w[ould] be on giving both [S.M. and his parents] strategies for managing problem
behavior,” but as discussed above, S.M. requires more from the residential component of

his placement. Def.’s Mot. to Dissolve Prelim. Inj. Ex. A, ECF No. 43; see also Report 3-
4, ECF No. 132 (explaining how S.M.’s current programming “is directed decreasing
problematic behaviors” but should “apply broadly to all of [S.M.’s] needs, including
language/communication skills, improving attention/engagement in activities, increasing
independence in daily living skills, and supporting social functioning.”).

For all these reasons, I find that Chichester’s proposed residential educational
placement at Elwyn is unlikely to produce progress for S.M. and does not satisfy
Chichester’s substantive obligation under the IDEA.
C. The record shows that Melmark will enable S.M. to make appropriate
progress in light of his circumstances.

Although Elwyn’s residential educational programming will not enable S.M. to
make appropriate progress, Melmark’s will.
As noted above, S.M. needs “uniformity and consistency across school and
residential settings” to make appropriate educational progress. Report 3, ECF No. 132.
Krystina Shellmire, Melmark’s Director of Children’s Residential Homes, described
Melmark’s residential educational program as a “packaged program” where children work

on the same academic and behavioral goals at the Melmark School and residential homes.
Aug. 21, 2024 Hr’g Tr. 22:10, ECF No. 149; see also id. at 22:17-23:7, 22:2-15 (describing
cross-collaboration between Melmark’s school and residential settings). She testified that
in S.M.’s case, those goals would be geared toward improving self-care, communication,
and daily living skills. See id. at 28:3-5.11 Christiana Skinner-Walker, Melmark’s Director
of Educational Services, confirmed the same. Id. at 40:9-12; 43:19-44:3.

Furthermore, Dr. Lazar’s report specifically recommends that S.M.’s “profile of
severe cognitive deficits and [] limited repertoire of skills warrants intensive Applied
Behavior Analysis (“ABA”)”—a type of programming for students with autism that
Chichester agrees is “critical” for S.M. Report 3, ECF No. 132; Def.’s Status Report 11,
ECF No. 151 (stating that ABA “is a critical component of programming” for students like

S.M.). Flynn explained that Elwyn staff employ ABA to address “behaviors that take []
away from learning.” See Aug. 21, 2024 Hr’g Tr. 88:9-89:1, ECF No. 149; see also id. at

11 Chichester asserts that S.M. was previously “enrolled in Melmark’s residential program for two
years[.]” Def.’s Status Rep. 7, ECF No. 151. This warrants clarification. As Shellmire explained,
S.M. “was in a different residential program” on Melmark’s campus (Melmark’s medical
residential treatment facility) from 2019 to 2020. Aug. 21, 2024 Hr’g Tr. 34:14-25, ECF No. 149.
Nonetheless, the record shows that S.M. received consistent support—and as a result, made
substantial progress—when he lived at Melmark’s RTF. See Dep. of Danielle Civarelli 659:19-
22, ECF No. 9-7 (“Q: What are some of the things that he received at Melmark that he didn't
receive before then that helped him? A: He received consistent one-on-one care. He received
consistent staffing. He received consistent schedules, consistent walking, consistent like life
skills.”); id. at 660-61 (describing S.M.’s improved toileting and behavior, and how S.M. learned
how to ride a bike); id. at 701:15-702:6 (noting how S.M. “was starting to strive in certain things
[like] never [] before” because of Melmark’s “consistency” and “structure”).
68:4-6 (Goodman testifying that ABA “is not ingrained in the same way [at Elwyn], and
it’s not consistent.”). By contrast, multiple witnesses testified that ABA is the hallmark

of Melmark’s programming, and is used not only to address problematic behaviors, but
also to teach and reinforce skills related to self-care and independence. See id. at 19:9-
21:23, ECF No. 149 (Shellmire explaining how ABA is used at Melmark); see also id.
24:3-14 (additional Shellmire testimony); 51:18-52:7 (Skinner-Walker testimony); 67:12-
17 (Goodman testimony).12
The record evidence speaks clearly and with one voice: anything less uniform,

consistent, and intensive than Melmark’s residential educational program is unlikely to
confer “a meaningful educational benefit” on S.M. T.R. v. Kingwood Twp. Bd. of Educ.,
205 F.3d at 577. I arrive at this conclusion not because I find Melmark “ideal,” or because
S.M.’s parents prefer Melmark. Endrew F., 580 U.S. at 399; see also Ridley, 680 F.3d at
269. Rather, I find that Melmark—but not Elwyn—will give S.M. the appropriate special

education and related services he is long owed.
IV. CONCLUSION

For the above reasons, I have ordered Chichester to (1) take all necessary steps to
secure S.M.’s residential educational placement at the Melmark School for his immediate
admission—including signing an enrollment contract and completing all related

12 Separately, the APS Directory explicitly notes that Melmark’s residential educational
programming is “based on Applied Behavior Analysis,” but makes no mention of Elwyn’s
residential educational programming, let alone whether it incorporates Applied Behavioral
Analysis. Compare APS Directory 26 (Melmark) with APS Directory 9 (Elwyn); see also Fed. R.
Evid. 201(b)(2) (allowing a court to take judicial notice of a fact that “can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.”).
requirements—on or before September 5, 2024; and (2) make all necessary arrangements
to fund S.M.’s placement at the Melmark School.

___s/ANITA B. BRODY , J._
ANITA B. BRODY, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10667291. Public record. Not legal advice.