In Hawai‘i Disability Center v. Kishimoto, 122 F.4th 353, 124 LRP 40099 (9th Cir. Nov. 26, 2024), the Ninth Circuit addressed whether a federally funded protection and advocacy agency was required to exhaust administrative remedies under the Individuals with Disabilities Education Act (IDEA) before pursuing claims challenging the State of Hawai‘i’s handling of applied behavioral analysis (ABA) services during the school day. The court affirmed in part and reversed in part the district court’s dismissal of the action.
The plaintiff, a federally designated protection and advocacy agency, sought declaratory and injunctive relief against the Hawai‘i Department of Education (DOE) and the Department of Human Services (DHS). The agency alleged that the state maintained a policy under which students with autism who were medically prescribed ABA services would not receive those services during the school day unless DOE independently determined that ABA was educationally necessary and provided DOE-approved personnel. The agency asserted that this practice violated IDEA, the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and the Medicaid Act.
The district court granted summary judgment in favor of DOE and DHS. On appeal, the Ninth Circuit first addressed exhaustion under IDEA. The court agreed that the protection and advocacy agency was required to exhaust IDEA claims through the due process system. It rejected arguments that exhaustion was excused based on futility, systemic violation, or inadequacy of administrative remedies. The court noted that parents had, in some instances, obtained relief through the administrative process and emphasized that hearing officers are bound to apply IDEA even when state or local policies point in a different direction. The court also concluded that the challenged conduct did not implicate the integrity of the IDEA dispute resolution system or seek restructuring of the educational system as a whole.
At the same time, the court clarified that the agency itself was not required to ensure that individual parents exhausted administrative remedies before the agency could pursue its claims. The court distinguished between the agency’s obligation to exhaust its own IDEA claims and any obligation to stand in the shoes of individual parents for exhaustion purposes.
The Ninth Circuit reached a different conclusion with respect to the non-IDEA claims. Applying 20 U.S.C. § 1415(l) and the framework set out in Fry v. Napoleon Community Schools, 580 U.S. 1 (2017), the court held that exhaustion was not required for the claims brought under Section 504, the ADA, and the Medicaid Act. The court reasoned that these claims did not concern the denial of a free appropriate public education (FAPE) and instead focused on access to medically necessary services. It observed that similar claims could be brought outside the school context, such as if another public facility denied access to an ABA provider, and that there was no history of IDEA administrative proceedings addressing the agency’s allegations.
With respect to the Medicaid Act claim, the court emphasized the agency’s allegation that DHS violated the Act’s early and periodic screening, diagnostic, and treatment mandate by delegating responsibility for medically necessary ABA services to DOE during school hours. The court highlighted that, as alleged, the Medicaid Act requires the state to provide medically necessary services regardless of their educational relevance.
The decision reflects that protection and advocacy agencies possess statutory standing to bring actions to protect the rights of individuals with disabilities, that IDEA exhaustion remains a prerequisite for IDEA-based claims even when brought by institutional plaintiffs, and that claims under other federal statutes may proceed without exhaustion where they are not fundamentally about the provision of educational services.