“Although [the plaintiff] alleged several 14 issues with [the defendant’s] practices and procedures concerning ABA therapy, its policy 15 challenge does not raise . . . wide-reaching and systemic concerns.”
How later courts described this case
- “Although [the plaintiff] alleged several 14 issues with [the defendant’s] practices and procedures concerning ABA therapy, its policy 15 challenge does not raise . . . wide-reaching and systemic concerns.”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAWAI‘I DISABILITY RIGHTS Nos. 20-17521,
CENTER, in a representative capacity 22-16524
on behalf of its constituents,
D.C. No.
Plaintiff-Appellant, 1:18-cv-00465-
LEK-WRP
v.
OPINION
CHRISTINA KISHIMOTO, in her
official capacity as Superintendent of
the State of Hawaii, Department of
Education; PANKAJ BHANOT, in his
official capacity as Director of the
State of Hawaii, Department of
Human Services,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted October 4, 2023
University of Hawaii Manoa
Filed November 26, 2024
2 HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO
Before: Marsha S. Berzon, Eric D. Miller, and Lawrence
VanDyke, Circuit Judges.
Opinion by Judge Berzon
SUMMARY*
Exhaustion / Individuals with Disabilities Education Act
The panel affirmed in part and reversed in part the
district court’s summary judgment in favor of the Hawai‘i
Departments of Education (“DOE”) and Human Services
(“DHS”) in an action brought by the Hawai‘i Disability
Rights Center (“HDRC”) alleging that DOE and DHS
unlawfully denied students with autism access to certain
therapeutic services.
The panel held that HRDC was required to exhaust
administrative procedures available under the Individuals
with Disabilities Education Act (“IDEA”) on its IDEA
claim, but HRDC’s non-IDEA claims did not require
exhaustion under the IDEA.
The panel held that, as Hawai‘i’s designated protection
and advocacy system, HDRC can pursue administrative
remedies under the IDEA to fulfill its statutory obligation to
protect the rights of individuals with disabilities, and is
therefore bound by the IDEA’s administrative exhaustion
requirement for its own claim, but need not ensure that
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO 3
parents of individual children with autism exhaust their
individual IDEA claims. HDRC did not exhaust its
administrative remedies, and no exceptions to IDEA
exhaustion applied.
The panel held that HDRC was not required to exhaust
the IDEA’s administrative procedures before bringing its
claims under the Americans with Disabilities Act, Section
504 of the Rehabilitation Act, and the Medicaid Act. The
exhaustion requirement applies only if the relief sought
under a non-IDEA statute is also available under the IDEA,
which requires that children with disabilities be provided
with a free appropriate public education (“FAPE”). Because
HRDC’s non-IDEA claims do not allege the denial of a
FAPE, HRDC was not required to exhaust the IDEA’s
administrative procedures for its non-IDEA claims.
COUNSEL
Maile Osika (argued), Paul D. Alston, Kristin L. Holland,
Madisson L. Heinze, and Laura P. Moritz, Dentons US LLP,
Honolulu, Hawaii, for Plaintiff-Appellant.
Skyler G. Cruz (argued), Caron M. Inagaki, and Ryan M.
Akamine, Deputy Attorneys General; Anne E. Lopez,
Attorney General of Hawaii; Office of the Hawaii Attorney
General, Honolulu, Hawaii; for Defendants-Appellees.
Sarah Somers, National Health Law Program, Chapel Hill,
North Carolina; David Hutt, National Disability Rights
Network, Washington, D.C.; for Amici Curiae the National
Health Law Program and the National Disability Rights
Network.
4 HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO
Lisa M. Lawless and Kirsten A. Atanasoff, Husch Blackwell
LLP, Milwaukee, Wisconsin; Daniel R. Unumb, Autism
Legal Resource Center LLC, Lexington, South Carolina, for
Amici Curiae National Autism Law Center, Autism Legal
Resource Center, and Council of Autism Service Providers.
OPINION
BERZON, Circuit Judge:
Autism Spectrum Disorder (“autism”) refers to a range
of cognitive and neurobiological disorders. Children with
autism often suffer from delays or deficiencies in the
development of cognitive functioning, language skills,
social interaction, and motor coordination. The impairments
and challenges faced by children with autism thus implicate
both social and educational development. That duality lies
at the heart of this case.
Hawaiʻi Disability Rights Center (“HDRC” or “the
Center”) is a federally authorized and funded protection and
advocacy organization representing individuals in Hawaii
with developmental disabilities, including children and
young adults with autism. HDRC alleges that Hawaii’s
Departments of Education (“DOE”) and Human Services
(“DHS”) unlawfully deny students with autism access to
certain therapeutic services during the school day, even
when those services are medically necessary. The disputed
service is Applied Behavioral Analysis (“ABA”), a form of
individualized behavioral therapy focused on reinforcing
positive behavior in individuals with autism and other
developmental disabilities. See infra Part I.A. DOE’s and
HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO 5
DHS’s policies, HDRC alleges, generally do not provide
ABA services in-school to students with autism. The state
agencies, HDRC maintains, limit the provision of in-school
therapeutic services for such students to only those services
deemed educationally relevant by DOE and to only those
students approved by DOE. So, unless DOE independently
determines a student requires ABA for educational purposes
and provides DOE-approved personnel for that purpose, a
student with autism who has been medically prescribed ABA
services will not receive services during the school day.
HDRC seeks injunctive and declaratory relief, alleging
that DOE’s and DHS’s policies limiting access to medically
prescribed ABA services during the school day violate the
Americans with Disabilities Act, Section 504 of the
Rehabilitation Act, the Medicaid Act, and the Individuals
with Disabilities Education Act (“IDEA”). The district court
granted summary judgment to DOE and DHS on all of
HDRC’s claims, holding that HDRC’s failure to exhaust
administrative procedures available under the IDEA was
fatal to all of its claims. The question before us on each
claim is whether HDRC was required to exhaust. We
conclude that HDRC did not need to exhaust its American
with Disabilities Act, Section 504, or Medicaid Act claims,
but did for its IDEA claim.
I. BACKGROUND1
A. Autism and ABA Therapy
As described in expert declarations submitted by HDRC,
Autism Spectrum Disorder (“autism”) is a developmental
1
Consistent with the standard for summary judgment, the facts recited
here are viewed in the light most favorable to HDRC, the non-moving
6 HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO
disability that typically presents with “three core features”:
(1) challenges with “social reciprocity,” (2) disordered
communication, and (3) “restricted, repetitive” behaviors.
Children with autism often “pursue[] unusual forms of
stimulation and miss[] opportunities for social interaction to
the point where they fail to develop normal language and
social skills.” “[D]evelopmental delays are not always
apparent” in children with autism; some children might have
“latent Autistic features that will manifest in severely
harmful challenges later in life.”
Evidence-based ABA programs typically provide 35–42
hours of intensive ABA treatment each week and take place
across all settings of a child’s life, including school. In
Hawaii, ABA is widely provided to children under the age
of 21, either through private medical insurance or, if the
child is eligible for Medicaid, through DHS. See Haw. Rev.
Stat. § 431:10A-133; 42 U.S.C. § 1396d(a)(4)(B), (r)(5).
The parties agree that ABA therapy is one of the few
effective, evidence-based treatments available for autism.2
According to HDRC’s expert pediatrician, Dr. Linda
Copeland, if administered correctly at a young age, ABA can
party, and all reasonable inferences supported by the record are drawn in
the Center’s favor. See, e.g., McSherry v. City of Long Beach, 584 F.3d
1129, 1134–35 (9th Cir. 2009).
2
Amici curiae the National Autism Law Center, the Autism Legal
Resource Center, and the Council of Autism Service Providers describe
ABA therapy as a clearly defined medical treatment, “delivered by
credentialed behavioral health professionals, following a rigorous ethics
code, and in accordance with generally accepted standards of care.”
According to the National Autism Law Center, ABA therapy is “the
standard of care for the treatment of [autism].” HDRC’s expert
psychologist, Dr. Eric V. Larsson, attested that “Intensive Intervention
using ABA is the only extensively researched and validated form of
treatment of Autism.”
HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO 7
improve an individual’s “language, social relationships,
adaptive functioning, [decrease] maladaptive behaviors,
and . . . increase[] [the] chance for successful educational
inclusion.” Dr. Copeland attested that early intervention can
even, at times, “result[] in the loss of the Autism diagnosis.”
But, according to Dr. Copeland, if improperly administered,
ABA can result in “medical harm in development that often
cannot be undone.” Dr. Larsson stated that it is critical that
a child receiving ABA therapy work with a licensed
behavior analyst. DOE and DHS do not agree that ABA
must be provided by a licensed professional.
Pursuant to the IDEA, DOE determines the need for
educationally necessary ABA services to be provided during
the school day. DOE’s policy is that these services “are to
be provided by DOE and/or DOE contracted providers and
may not be provided by a parent or parent’s representative.”
DOE’s policy effectively bans medically prescribed ABA
services from taking place at school, unless they are also
deemed educationally necessary, even if the services are
available without cost to DOE. Also, DOE policy does not
ensure that ABA or ABA-like services in school are
provided by licensed providers.
B. Statutory Context
1. Protection and Advocacy Systems
Congress passed the Developmentally Disabled
Assistance and Bill of Rights Act of 1975 following public
revelation of severe abuses of individuals with disabilities at
Willowbrook State School in Staten Island, New York. Pub.
L. 94-103, 89 Stat. 486. The 1975 Act and its successor
statute, the Developmental Disabilities Assistance and Bill
of Rights Act of 2000 (“DD Act”), require states that accept
federal financial assistance for individuals with
8 HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO
developmental disabilities to have “in effect a system to
protect and advocate the rights of individuals with
developmental disabilities.” 42 U.S.C. § 15043(a)(1); see
also 45 C.F.R. §§ 1326.19–1326.24. These protection and
advocacy systems have authority to “pursue legal,
administrative, and other appropriate remedies . . . to ensure
the protection of, and advocacy for, the rights of” individuals
with disabilities who are eligible for state-supported
services. 42 U.S.C. § 15043(a)(2)(A)(i). HDRC is Hawaii’s
designated protection and advocacy system. See Haw. Rev.
Stat. § 333F-8.5.
2. The Individuals with Disabilities Education
Act
Pursuant to the Individuals with Disabilities Education
Act (“IDEA”), DOE is required to provide children with
disabilities “a free appropriate public education” (“FAPE”).
20 U.S.C. § 1401(9). A FAPE provides every child who
qualifies with “special education” and “related services.”
Id.; see also id. § 1401(26), (29). An Individualized
Education Program (“IEP”) team meets to decide whether a
child qualifies for services, and, if so, determine the
appropriate services for the student. See 20 U.S.C. § 1414.
The IEP team includes school staff, district administrators,
and the parent or guardian of the child. Id. § 1414(d)(1)(B).
If an IEP team member disagrees with the IEP
established for the child (or with the failure to establish one),
the team member—in practice, typically the child’s parent—
must exhaust administrative remedies by filing an
administrative complaint concerning, among other matters,
any issue related to the provision of FAPE. 20 U.S.C.
HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO 9
§ 1415(b)(6)(A).3 “[T]he parents or the local educational
agency involved in such complaint shall have an opportunity
for an impartial due process hearing,” conducted by a
hearing officer. Id. § 1415(f)(1)(A), (f)(2).4 Following the
hearing officer’s decision, “any party involved in [the due
process] hearing may appeal such decision,” either to the
state educational agency, when the initial hearing was
conducted by a local educational agency, or by filing a
lawsuit regarding their complaint. Id. § 1415(i)(1)(A),
(i)(2)(A).5 Only after obtaining a decision via the
administrative hearing process does a party “have the right
to bring a civil action with respect to the complaint.” Id.
§ 1415(i)(2)(A). Should an individual file a lawsuit that
does not explicitly allege a violation of the IDEA, but seeks
relief that could be provided through the IDEA, that
individual must exhaust administrative remedies before
moving forward with the lawsuit. See id. § 1415(l); Fry v.
Napoleon Cmty. Schs., 580 U.S. 154, 168–69 (2017).
3. The Medicaid Act
Medicaid is a “cooperative federal-state program that
directs federal funding to states to assist them in providing
3
As discussed below, there are exceptions to IDEA’s exhaustion
requirement. See infra Part II.A.2.
4
The IDEA and DOE regulations require that due process hearings be
heard by an impartial hearing officer not employed by a state agency that
is “involved in the education or care” of the student. 20 U.S.C.
§ 1415(f)(3)(A)(i)(I); Haw. Admin. Rules § 8-60-65(c)(1)(A)(i).
5
Hawaii has a state-wide school system administered by DOE, rather
than local school boards or educational agencies. In accordance with this
structure, DOE regulations provide that “[a]ny party aggrieved by the
findings and decision made” in a due process hearing “has the right to
bring a civil action” without first filing an administrative appeal. Haw.
Admin. Rules § 8-60-70.
10 HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO
medical assistance to low-income individuals.” Katie A., ex
rel. Ludin v. Los Angeles County, 481 F.3d 1150, 1153–54
(9th Cir. 2007). Any state that participates in the Medicaid
program and receives federal funding must comply with
federal requirements. Id. at 1154. DHS is the Hawaii agency
designated to administer Hawaii’s Medicaid program,
including ensuring compliance with federal requirements.
Haw. Rev. Stat. § 346-14; see 42 U.S.C. § 1396a(a)(5).
DHS provides Medicaid services to qualified individuals by
contracting with private health providers; these services are
known as “Quest Integration” health plans.
The early and periodic screening, diagnostic, and
treatment services provision of the Medicaid Act requires
designated state agencies, here DHS, to provide free
screening and services to individuals who qualify for
Medicaid. 42 U.S.C. § 1396d(a)(4)(B). To comply with this
requirement, DHS screens Medicaid recipients for a list of
illnesses and conditions. Following identification of a
medical need as a result of screening, DHS has “an
obligation to see that . . . services are provided” to ameliorate
the demonstrated need. Katie A., 481 F.3d at 1158. As the
Medicaid Act requires, DHS provides medically necessary
ABA to Medicaid beneficiaries with autism. 42 U.S.C.
§ 1396d(a)(4)(B), (r)(5). The Medicaid Act does not allow
DHS to “prohibit or restrict[] payment . . . for medical
assistance for covered services furnished to a child with a
disability because such services are included in the child’s
[IEP].” 42 U.S.C. § 1396b(c).
4. The Americans with Disabilities Act & Section
504 of the Rehabilitation Act
The Americans with Disabilities Act (“ADA”) and
Section 504 of the Rehabilitation Act (“Section 504”)
HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO 11
establish “an affirmative obligation for public entities to
make benefits, services, and programs accessible to people
with disabilities.” Updike v. Multnomah County, 870 F.3d
939, 949 (9th Cir. 2017).6 The Rehabilitation Act’s purpose
is “to empower individuals with disabilities to maximize . . .
inclusion and integration into society[] through . . . the
guarantee of equal opportunity,” 29 U.S.C. § 701(b)(1); the
ADA “provide[s] a clear and comprehensive national
mandate for the elimination of discrimination against
individuals with disabilities.” 42 U.S.C. § 12101(b)(1).
Litigants often raise parallel claims under each statute where
both are applicable, and our cases generally interpret the two
statutes as providing the same protections. See K.M. ex rel.
Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1093–94,
1098 (9th Cir. 2013); Paul G. ex rel. Steve G. v. Monterey
Peninsula Unified Sch. Dist., 933 F.3d 1096, 1098–99 (9th
Cir. 2019); Christopher S. ex rel. Rita S. v. Stanislaus Cnty.
Office of Educ., 384 F.3d 1205, 1207–08 (9th Cir. 2004).
Public schools are among the public entities covered by both
the ADA and Section 504. See K.M., 725 F.3d at 1097–98.
C. Factual Background
In January and August of 2015, DHS issued memoranda
stating that the Quest Integration health plans and other
providers “must comply with the full range of [early and
periodic screening, diagnostic, and treatment] duties and
requirements, including providing Intensive Behavioral
Therapy (IBT) treatment modalities, including ABA, for
children under 21 years of age with [autism] when based on
individualized determinations of medical necessity.” In
another memorandum entitled “Coverage of Intensive
6
Section 504 applies only to programs that receive federal funding. 29
U.S.C. § 794(a).
12 HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO
Behavioral Therapy (IBT) for Treatment of Children Under
21 Years of Age with Autism Spectrum Disorder (ASD),”
issued two years later, DHS clarified that guidance. The new
memorandum first reaffirmed that Quest Integration health
plans must “comply with the full range of [early and periodic
screening, diagnostic, and treatment] duties and
requirements.” The memorandum then stated:
This guidance does not apply to the
Department of Education (DOE) school-
based claiming[7] or the Department of
Health’s Early Intervention Program (DOH-
EIP). DOE may provide ABA or ABA-like
services to a beneficiary while in school as it
relates to a child’s educational needs. If
justification is provided indicating the ABA
service is medically necessary and approved
by the [Quest Integration] health plan, the
health plan will be responsible to provide and
cover ABA services before or after school
and when school is not in session. . . .
The ultimate responsibility to ensure that
medically necessary ABA services are
delivered to beneficiaries rests with the
[Quest Integration] health plans. This
responsibility is in effect all year, whether
school is in session or out of session. [Quest
7
“[S]chool based claiming” refers to the processes by which schools and
educational agencies are reimbursed, such as by Medicaid, for health
services they provide to students. See, e.g., What is the Purpose of
School-Based Medicaid Claiming, New England Medical Billing (Mar.
21, 2021), https://www.nembgroup.com/what-is-the-purpose-of-school-
based-medicaid-claiming/.
HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO 13
Integration] health plans are expected to
coordinate with the family, DOE and/or [the
Department of Health’s Early Intervention
Program] to ensure that the beneficiary
receives medically necessary ABA services
in the most efficient manner that also takes
into account the child’s tolerance to benefit
from receiving services in and outside of
school.
(Emphasis added).
As the 2017 memorandum indicates, DHS does not
provide ABA services to students with autism during school
hours, even if medically necessary and even if approved
ABA services that would otherwise take place during school
hours are covered by the child’s health plan. Instead, DOE
provides in-school ABA and ABA-like services to students
with autism where there has been a determination that such
services are educationally relevant, meaning that the services
would “enable participation and progress [the] student[] in
the general education curriculum.” Although an IEP team
may consider a child’s prescription of ABA as medically
necessary in making the determination whether ABA is to be
included in their IEP, barring a finding that ABA services
are educationally relevant, DOE will not provide them.
Additionally, DOE does not allow private providers onto
school campuses to provide ABA services, regardless of
whether those providers are covered by Medicaid or private
insurance. In short, DOE’s policy is that only DOE may
provide ABA (or ABA-like) services during school hours
and only following a determination that such services are
educationally relevant.
14 HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO
D. District Court Proceedings
HDRC filed a complaint in the District of Hawaii on
behalf of Hawaii children and young adults under the age of
22 diagnosed with autism and requiring some level of ABA.
The Center sought declaratory and injunctive relief, alleging
that: (1) DOE and DHS violated the ADA and Section 504
of the Rehabilitation Act; (2) DHS violated the Medicaid
Act; and (3) DOE violated the IDEA.
DOE and DHS moved for summary judgment, asserting
that “all counts of the Complaint filed in this action . . . can
be redressed by the administrative procedures under
[IDEA].” In the agencies’ view, parents of HDRC’s
constituents were required “to exhaust administrative
remedies before filing a civil lawsuit.” The district court
granted the motion on the grounds that HDRC’s IDEA,
ADA, Section 504, and Medicaid claims were all subject to
IDEA’s administrative exhaustion requirement. See Haw.
Disability Rts. Ctr. v. Kishimoto, Civ. No. 18-00465, 2022
WL 3915472 (D. Haw. Aug. 31, 2022).
Citing a District of Massachusetts case, the district court
first rejected HDRC’s argument that it was exempt from the
IDEA’s administrative exhaustion requirement due to its
status as a protection and advocacy organization. Id. at *6
(citing S.S. ex rel. S.Y. v. City of Springfield, 332 F. Supp. 3d
367, 378 (D. Mass. 2018)). The court next held that this case
satisfies none of the exceptions to IDEA administrative
exhaustion. Id. at *7–9. Finally, the district court concluded
that the “gravamen” of HDRC’s claims under the ADA,
Section 504, and the Medicaid Act sought relief available
under the IDEA and therefore likewise required exhaustion.
HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO 15
Id. at *7. The court granted summary judgment to DOE and
DHS on each of HDRC’s claims.8 Id. at *12.
HDRC timely appealed. HDRC asserted that (1) DOE’s
and DHS’s policies, in combination, limit students to
receiving during school only those ABA services deemed
educationally relevant; (2) some students do not receive any
ABA services in school, even though those services were
prescribed as medically necessary; and (3) some students
receive less robust ABA services in school than they need to
improve their social functioning and meet their medical
needs, as those in-school services are limited to services
needed for the students to keep up with the educational
curriculum.
II. DISCUSSION
We review the district court’s grant of summary
judgment de novo. Frudden v. Pilling, 877 F.3d 821, 828
(9th Cir. 2017). We must determine, viewing the evidence
in the light most favorable to the nonmoving party, here
HDRC, “whether there are any genuine issues of material
fact and whether the district court correctly applied the
relevant substantive law.” Social Techs. LLC v. Apple Inc.,
4 F.4th 811, 816 (9th Cir. 2021) (quoting KP Permanent
Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596,
602 (9th Cir. 2005)). There is a genuine issue of material
8
The district court held that HDRC was precluded from bringing its
IDEA, ADA, and Section 504 claims under § 1983, as the complaint had
alleged. Haw. Disability Rts. Ctr., 2022 WL 3915472 at *11–12. Before
the district court’s order, HDRC recognized that § 1983 is not a proper
vehicle to bring those claims, and so informed the district court in a letter
brief. In its brief on appeal, HDRC states that the references to § 1983
in its complaint were surplusage. Because HDRC has abandoned any
§ 1983 claims, we do not address them.
16 HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO
fact when a reasonable jury reviewing the evidence
submitted on summary judgment could return a verdict for
the nonmoving party. T.W. Elec. Serv., Inc. v. Pacific Elec.
Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987).
Where evidence provided by the moving party conflicts with
that provided by the nonmoving party, we must “assume the
truth of the evidence set forth by the nonmoving party with
respect to that fact.” Id. We review whether IDEA remedies
must be exhausted, and if so, whether they have been
exhausted, de novo. See Hoeft v. Tucson Unified Sch. Dist.,
967 F.2d 1298, 1303 (9th Cir. 1992).
A. IDEA Claim
HDRC alleged in its operative complaint a claim under
the IDEA against DOE, asserting that DOE violated the
IDEA by: (1) “categorically failing to provide, or allow
delivery of, ABA services to students with Autism through
qualified professionals”; (2) “not providing adequate ABA
services to its students with Autism”; (3) “prohibiting ABA
service providers from campus to supply students with
Autism with medically necessary ABA during school
hours”; (4) “predetermin[ing] that ABA services are not to
be included in IEPs”; (5) not providing FAPE to “students
with Autism who need ABA during the school day”; and
(6) failing to integrate students with Autism into “the regular
classroom.” None of these challenges was presented in a
complaint submitted to DOE or pursued via an impartial due
process hearing, administrative procedures which the IDEA
requires parties to exhaust prior to filing a civil suit. See 20
U.S.C. § 1415(b)(6), (f)(1)(A), (i)(2)(A); see also Haw.
Admin. Rules §§ 8-60-61, 8-60-65. HDRC argues that it is
exempt from the IDEA’s exhaustion requirement because of
its status as a protection and advocacy organization, and that
HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO 17
if it is not exempt, one of three exhaustion exceptions
applies.
1. Applicability of the IDEA’s Exhaustion
Requirement to HDRC
We first address whether, as Hawaii’s protection and
advocacy organization, HDRC is required to exhaust IDEA
administrative remedies for its IDEA claims.
The IDEA provides for participation in administrative
proceedings by “parents” and “local educational agenc[ies],”
20 U.S.C. § 1415(f)(1)(A), (i)(1)(A), and requires
“administrative appeal procedures to be pursued before
seeking judicial review,” Hoeft, 967 F.2d at 1302 (citing 20
U.S.C. § 1415). Protection and advocacy organizations like
HDRC do not fall under the statutory definition of either
“parent” or “local educational agency.” See 20 U.S.C.
§ 1401(19), (23). HDRC argues that, as protection and
advocacy organizations are not included in the parties
specifically authorized in the IDEA to file an administrative
complaint under the IDEA, they are exempt from the IDEA’s
exhaustion requirement. We disagree.
Although the IDEA does not include protection and
advocacy organizations in its list of parties to administrative
actions, the IDEA is not the only statute relevant to the
question of whether HDRC may participate in IDEA
administrative hearings. The DD Act, which mandates the
establishment of protection and advocacy organizations like
HDRC, provides that protection and advocacy organizations
“shall . . . have the authority to . . . pursue legal,
administrative, and other appropriate remedies or
approaches to ensure the protection of, and advocacy for, the
18 HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO
rights of” individuals with developmental disabilities.9 42
U.S.C. § 15043(a)(2)(A)(i). The DD Act thus empowers
protection and advocacy systems like HDRC to seek
administrative remedies on behalf of their constituents. As
relevant here, both the DD Act and the IDEA concern the
provision of educational services to students with
disabilities. Such “related statutes should ‘be construed as if
they were one law.’” California v. Trump, 963 F.3d 926,
947 n.15 (9th Cir. 2020) (quoting Erlenbaugh v. United
States, 409 U.S. 239, 243 (1972)). To give meaning to the
DD Act’s administrative remedies provision, HDRC must be
able to make use of the IDEA’s administrative procedures.
HDRC’s statutory authority to represent its constituents
in administrative hearings is consistent with our case law
regarding the representative nature of protection and
advocacy organizations. In Oregon Advocacy Center v.
Mink, 322 F.3d 1101 (9th Cir. 2003), we held that, given the
“statutory mission and focus” of protection and advocacy
organizations, such organizations are the “functional
equivalent of . . . voluntary membership organization[s]” for
purposes of associational standing, 322 F.3d at 1110–11, and
9
The DD Act’s predecessor, the Developmentally Disabled Assistance
and Bill of Rights Act of 1975, similarly required that protection and
advocacy organizations “have the authority to pursue legal,
administrative, and other appropriate remedies to insure [sic] the
protection of the rights of [developmentally disabled] persons who are
receiving treatment, services, or habilitation within the State.” Pub. L.
94-103, § 203, 89 Stat. 486, 504. The Developmentally Disabled
Assistance and Bill of Rights Act passed the Senate in June 1975 and
was enacted that October, predating the IDEA’s predecessor, the
Education for All Handicapped Children Act of 1975, which was passed
and enacted in November 1975. See Pub. L. 94-142, 89 Stat. 773.
HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO 19
so are empowered to represent in court the interests of the
class of people they were created to protect, see id. at 1113.10
So too for purposes of administrative representation. As
with the protection and advocacy organization at issue in
Mink, HDRC is statutorily required to have a governing
board “composed of members who broadly represent or are
knowledgeable about the needs of the individuals served by
the system.” 42 U.S.C. § 15044(a)(1)(A); see Mink, 322
F.3d at 1111. A majority of the members of HDRC’s
governing board are required to be “individuals with
disabilities, including individuals with developmental
disabilities, who are eligible for services, or have received or
are receiving services through the system; or . . . parents,
family members, guardians, advocates, or authorized
representatives of [such] individuals.” 42 U.S.C.
§ 15044(a)(1)(B). HDRC thus serves a “specialized
segment of [Hawaii’s] community”—individuals with
developmental disabilities—who are the “functional
equivalent of members.” Mink, 322 F.3d at 1110–11.
Consistent with the holding of Mink, as well as with the DD
Act’s mandate that protection and advocacy organizations
“shall have the authority to pursue legal, administrative, and
other appropriate remedies” to protect the rights of their
constituents, HDRC is authorized to bring administrative
claims as representatives of the parents of developmentally
disabled children. 42 U.S.C. § 15043(a)(2)(A)(i); see Mink,
322 F.3d at 1113. Administrative exhaustion by HDRC will
10
Mink involved a protection and advocacy organization established
pursuant to the Protection and Advocacy for Mentally Ill Individuals Act
(“PAMII”), 42 U.S.C. §§ 10801–10851. 322 F.3d at 1105. Similar to
the DD Act, PAMII provides for the creation of state organizations to
“protect and advocate the rights” of individuals with mental illness. 42
U.S.C. § 10804(a)(1)(B).
20 HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO
serve the “general purposes of exhaustion and the
congressional intent behind [IDEA’s] administrative
scheme,” giving a court the “benefit of agency expertise and
an administrative record” and providing DOE “adequate
opportunity to investigate and correct [its] policies.” Hoeft,
967 F.2d at 1303, 1308.
The district court, after observing that the IDEA does not
include protection and advocacy organizations in the list of
parties to administrative actions, concluded that “[a]
Protection and Advocacy Program seeking relief that ‘is
closely related to questions about the provision of FAPE to
their constituents’ must ensure administrative remedies are
exhausted under the IDEA.” Haw. Disability Rts. Ctr., 2022
WL 3915472 at *6 (emphasis added) (quoting S.S. ex rel.
S.Y. v. City of Springfield, 332 F. Supp. 3d 367, 378 (D.
Mass. 2018)). The district court specified that “[t]he parents
of [HDRC’s] constituents must exhaust the IDEA’s
administrative process.” Id. at *10. Because we hold that
HDRC may, and in fact must, pursue its IDEA claim via an
IDEA administrative hearing, it is not necessary for HDRC
to ensure that parents of its constituents independently
exhaust the IDEA administrative process for their own
claims.
We conclude that HDRC can pursue administrative
remedies under the IDEA to fulfill its statutory obligation to
protect the rights of individuals with developmental
disabilities. See 42 U.S.C. § 15041. Because HDRC may
seek relief for its IDEA claim in an IDEA administrative
hearing, HDRC is bound by the IDEA’s administrative
exhaustion requirement for that claim, see 20 U.S.C.
§ 1415(i)(2)(A), so it must exhaust its own claim, but it need
not ensure that parents of individual children with autism
exhaust their individual IDEA claims before it brings suit.
HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO 21
2. Applicability of Exemptions to IDEA
Exhaustion
Having determined that HDRC is subject to the IDEA’s
exhaustion requirement, we now address whether any of the
exceptions to exhaustion under the IDEA apply to HDRC’s
IDEA claims. Our court has identified three independent
exceptions to the IDEA’s exhaustion requirement: (1) where
the administrative process would be “futile,” (2) where the
claim arises from a policy or practice of “general
applicability that is contrary to law,” or (3) where it is
“improbable that adequate relief can be obtained by pursuing
administrative remedies (e.g., the hearing officer lacks the
authority to grant the relief sought).” Paul G. ex rel. Steve
G. v. Monterey Peninsula Unified Sch. Dist., 933 F.3d 1096,
1101 (9th Cir. 2019) (quoting Hoeft v. Tucson Unified Sch.
Dist., 967 F.2d 1298, 1303–04 (9th Cir. 1992)). On the
current summary judgment record, HDRC’s IDEA claim is
not exempt from administrative exhaustion under any of
these exceptions.
a. Futility
IDEA administrative exhaustion is futile when “[s]erious
due process violations” preclude meaningful administrative
review of a plaintiff’s claims and “have the practical effect
of denying the plaintiffs a forum for their grievances.”
Hoeft, 967 F.2d at 1304. Administrative exhaustion under
the IDEA is also futile when “plaintiffs ha[ve] already taken
all measures to secure administrative relief which could
reasonably be expected of them.” Kerr Center Parents Ass’n
v. Charles, 897 F.2d 1463, 1470 (9th Cir. 1990).
The Center recognizes that several of its constituents
have successfully pursued administrative remedies to obtain
in-school ABA services. At the same time, HDRC as an
22 HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO
organization has not taken any “measures to secure
administrative relief,” let alone “all.” Kerr Center Parents,
897 F.2d at 1470. Further, that its constituents have
sometimes been able to acquire relief regarding ABA
services in school—albeit after alleged “fierce advocacy”
and “political pressure”—demonstrates that there exists a
“forum for their grievances,” Hoeft, 967 F.2d at 1304. The
upshot is that there has been no adequate showing of futility
for HDRC (or its constituents) with regard to pursuing
administrative remedies.
b. General Applicability
To establish a general applicability exception to the
IDEA’s exhaustion requirements, a plaintiff must challenge
polices that “rise to a truly systemic level in the sense that
the IDEA’s basic goals are threatened on a system-wide
basis” and “demonstrate in addition that the underlying
purposes of exhaustion would not be furthered by enforcing
the requirement.” Hoeft, 967 F.2d at 1304–05. “A claim is
systemic, and therefore entitled to the general applicability
exception, if it concerns ‘the integrity or reliability of the
IDEA dispute resolution procedures themselves, or requires
restructuring the education system itself in order to comply
with the dictates of the Act.’”11 Paul G., 933 F.3d at 1101–
02 (quoting Doe ex rel. Brockhuis v. Ariz. Dep’t of Educ.,
111 F.3d 678, 682 (9th Cir. 1997)).
HDRC’s challenge under the IDEA to Hawaii’s policies
concerning ABA therapy in public schools does not meet
these requisites. As the district court determined, HDRC
11
Paul G.’s articulation of the general applicability exception overlaps
with the standard for the inadequacy exception to IDEA exhaustion. See
infra Part II.A.2.c. Whichever category these considerations belong
under, they are not met here. See id.
HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO 23
challenged only “one component” of the special education
program, as opposed to asserting that the policies of “the
entire special education system” were flawed. HDRC’s
complaint focused on a particular component of DOE’s
special education programming—ABA provision and
procedures. Although HDRC alleged several issues with
DOE’s practices and procedures concerning ABA therapy,
its policy challenge does not raise the sort of wide-reaching
and systemic concerns required to trigger the general
applicability exception. See Paul G., 933 F.3d at 1101–02.
Because HDRC raised only a limited policy challenge, its
IDEA claim is ineligible for the general applicability
exception to the exhaustion requirement.
c. Inadequacy
Nor has HDRC shown that it is exempt from the IDEA’s
administrative exhaustion requirement because “the
administrative process is [not] adequately equipped to
address and resolve the issues presented.” Hoeft, 967 F.2d
at 1309. In large part, this exception overlaps with the
general applicability exception, in recognition that
“[a]dministrative remedies are generally inadequate where
structural, systemic reforms are sought.” Id. To the degree
of that overlap, the inadequacy exception is inapplicable for
the same reason—HDRC’s IDEA claim “do[es] not rise to
systemic proportions,” so this exception is foreclosed. Id.
“Exhaustion may also be excused because of inadequacy
of administrative remedies where the plaintiffs’ substantive
claims themselves concern the adequacy of the
administrative process.” Id. (citing Jose P. v. Ambach, 669
F.2d 865, 867–69 (2d Cir. 1982)). HDRC’s IDEA claim
focuses only on DOE’s ABA process and related procedures;
there is no contention that DOE has prevented access to the
24 HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO
administrative process or that the administrative process is
unable to provide relief for HDRC’s alleged IDEA
violations.
HDRC argues that the IDEA’s administrative process is
inadequate to address its IDEA challenges to DOE’s policies
because administrative hearing officers are required to apply
the state’s current policies. But the IDEA requires that
hearing officers’ decisions be “based on a determination of
whether the child received a free appropriate public
education.” 20 U.S.C. § 1415(f)(3)(E)(i). Under the federal
statute, then, IDEA hearing officers are obligated to apply
the statutory standard, not local or state policies. Nor does
the record establish that hearing officers in Hawaii are bound
by DOE policy such that they cannot give effect to the IDEA
where the two conflict.12
We therefore conclude that HDRC’s IDEA claim as
alleged in the complaint is not exempt from administrative
exhaustion under the IDEA. HDRC must satisfy the IDEA’s
administrative exhaustion requirement for its IDEA claim.
B. Non-IDEA Claims
In addition to its IDEA claims, HDRC seeks to challenge
Hawaii’s policy regarding the provision of ABA services in
schools under the ADA, Section 504, and Medicaid Act. In
support of its ADA and Section 504 claims, HDRC alleged
in its operative complaint that DOE and DHS: (1) “fail[] and
refus[e] to make reasonable accommodations for [students
with autism] to access programs and services simply because
they relate to their Autism”; (2) “us[e] criteria and methods
12
Should the administrative process later prove incapable of providing
the relief HDRC seeks, HDRC’s IDEA claim would be excused from
exhaustion on futility or inadequacy grounds.
HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO 25
of administration that subject [students with autism] to
discrimination on the basis of their disability”; (3) do not
“afford[] [students with autism] an equal opportunity to
participate in or benefit from services equal to that afforded
others”; and (4) “limit[] [students with autism] to aids,
benefits, or services that are not as effective in affording
equal opportunity to participate in [DOE’s and DHS’s]
benefits and services as those afforded others.”
In support of its Medicaid Act claim against DHS,
HDRC alleges that DHS: (1) “fail[s] to provide and ensure
access to medically necessary ABA services during school
hours”; (2) “improperly delegate[s] its responsibility to
provide ABA services to [early and periodic screening,
diagnostic, and treatment] recipients during the school day
to DOE, despite knowing that DOE does not provide or
accommodate ABA services for its students”; and (3) “fail[s]
to coordinate a mechanism for ensuring the delivery of
necessary services to students with Autism enrolled in DOE
schools.”
The only question before us with regard to the three non-
IDEA claims is whether HDRC was required to exhaust the
IDEA’s administrative procedures before bringing its ADA,
Section 504, and Medicaid Act claims. The answer is no.
Section 1415(1) of the IDEA provides:
Nothing in this chapter shall be construed to
restrict or limit the rights, procedures, and
remedies available under . . . other Federal
laws protecting the rights of children with
disabilities, except that before the filing of a
civil action under such laws seeking relief
that is also available under this subchapter,
26 HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO
the procedures . . . shall be exhausted to the
same extent as would be required had the
action been brought under this subchapter.
20 U.S.C. § 1415(l). Section 1415(l)’s exhaustion
requirement applies only if the relief sought under a non-
IDEA statute is also available under the IDEA. In other
words, a plaintiff must exhaust IDEA administrative
remedies in the same way required had that plaintiff brought
an IDEA claim asserting a relief of FAPE if the relief sought
under a non-IDEA statute is also available under the IDEA.
The Supreme Court’s recent decision in Fry v. Napoleon
Community Schools, 580 U.S. 154 (2017), governs whether
HDRC’s non-IDEA claims seek relief that is available under
the IDEA. Applying Fry, we conclude that HDRC was not
required to exhaust its non-IDEA claims.13
In Fry, as in this case, the school district asserted that the
plaintiff sought relief available under the IDEA and so was
required to exhaust administrative remedies before filing a
lawsuit. 580 U.S. at 164. The Court in Fry began from the
premise that for non-IDEA claims to come within the
exhaustion requirement, “a suit must seek relief for the
denial of a FAPE, because that is the only relief the IDEA
makes available.” Id. at 165 (internal quotation marks
omitted). Fry held that whether a suit seeks relief for the
13
The Supreme Court more recently decided a related case, Luna Perez
v. Sturgis Public Schools, 598 U.S. 142 (2023). Perez held that a plaintiff
is not required to exhaust IDEA’s administrative remedies when they
seek only compensatory damages, “a form of relief everyone agrees
IDEA does not provide,” even when suing for the denial of a FAPE. 598
U.S. at 148–50. Because we hold that HDRC’s non-IDEA claims do not
seek relief for the denial of a FAPE, we need not address under Perez
whether the form of relief HDRC seeks is available under the IDEA.
HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO 27
denial of a FAPE is determined by the “crux—or, in legal-
speak, the gravamen—of the plaintiff’s complaint.” Id. at
169. The Court then provided guidance to courts in
determining “whether the gravamen of a complaint against a
school concerns the denial of a FAPE, or instead addresses
disability-based discrimination.” Id. at 171.
Fry instructed that a court should ask: “could the plaintiff
have brought essentially the same claim if the alleged
conduct had occurred at a public facility that was not a
school—say, a public theater or library? And second, could
an adult at the school—say, an employee or visitor—have
pressed essentially the same grievance?” Id. If the court
answers “yes” to those questions, a complaint is likely not
alleging a denial of FAPE. Id. Fry also instructed a court to
look into the “history of the proceedings.” Id. at 173. If a
plaintiff previously used “the IDEA’s formal procedures to
handle the dispute” and switched to non-IDEA litigation
“midstream,” the move may signal to the court that “the
substance of a plaintiff’s claim concerns the denial of a
FAPE, even if the complaint never explicitly uses that term.”
Id. at 173–74.
Informed by Fry, we hold that HDRC was not required
to exhaust IDEA’s administrative procedures for its non-
IDEA claims.
1. ADA & Section 504 Claims (against DOE and
DHS)
We assess HDRC’s ADA and Section 504 claims
together, as they rely on the same factual allegations and
legal theories. Under Fry, these allegations and theories are
not equivalent to claims for the denial of FAPE.
28 HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO
Fry concerned a child with cerebral palsy, E.F., who
used a service dog, named Wonder, “as recommended by her
pediatrician.” Fry, 580 U.S. at 162. Her parents requested
permission for Wonder to attend kindergarten with E.F. so
that she could continue to benefit from his services. Id.
School officials refused the request. Id. “Wonder should be
barred from [the school],” administrators pronounced,
“because all of E.F.’s physical and academic needs [were]
being met through the services/programs/accommodations
that the school had already agreed to.” Id. (quotation marks
omitted). The Frys’ lawsuit alleged claims under Title II of
the ADA and Section 504. Id. at 163–64.
Answering the hypothetical questions it presented, the
Court in Fry determined that (1) the Frys could have filed
the same complaint if a different public facility refused to
admit Wonder, and (2) an adult could file a complaint if
refused entry with a service dog. Id. at 175. Based on these
answers, Fry concluded that the “suit would have nothing to
do with the provision of educational services.” Id.14
So here. Like E.F., HDRC brings claims under the ADA
and Section 504 that do not concern the provision of
educational services. These claims could have been filed if
a different public facility—a public hospital, for example, or
a library—refused to allow ABA therapists to provide
services on-site to autistic children. Although ABA services
are predominately provided to children, making it unlikely
14
The record in Fry was not developed as to whether the Frys had
previously sought relief through the IDEA administrative process. The
Court in Fry held that on remand, the district court should determine to
what extent the Frys “started down that road” and “whether [the Fry’s]
actions reveal that the gravamen of their complaint is indeed the denial
of a FAPE, thus necessitating further exhaustion.” Id. at 175–76.
HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO 29
that an adult at the school would file a complaint concerning
whether their ABA support provider must be allowed entry
to the school, one aspect of the answer to Fry’s “visitor”
hypothetical indicates that HDRC’s claims do not concern
the denial of an adequate education. As the Fourth Circuit
explained in a similar case, “a non-student visitor [to the
school] (say, a friend, sibling, or other relative) could make
a largely identical claim against [DOE and DHS] if it refused
to permit an ABA therapist to accompany the visitor” into
the school. Z.W. ex rel. Warner v. Horry Cnty. Sch. Dist., 68
F.4th 915, 920 (4th Cir. 2023).
The “history of the proceedings” also demonstrates that
HDRC’s non-IDEA claims do not challenge the denial of a
FAPE. Fry, 580 U.S. at 173. As discussed earlier, HDRC
has not pursued IDEA administrative remedies. Although
some of HDRC’s constituents invoked IDEA’s formal
procedures, those constituents were proceeding on an
individual basis to contest a particular student’s eligibility
for ABA services. They were not, as HDRC has done here,
filing a complaint addressing DOE’s and DHS’s policies
concerning ABA support during the school day.
Applying Fry, then, HDRC’s claims do not allege a
denial of FAPE, so IDEA exhaustion is not required here.
2. Medicaid Act Claim (against DHS only)
HDRC’s Medicaid claim follows a similar pattern.
HDRC seeks injunctive relief against DHS on its Medicaid
Act claim. Specifically, it seeks to compel DHS to “provide
adequate medically necessary ABA during school hours for
Medicaid recipients.” “Requiring the State actually to
provide [early and periodic screening, diagnostic, and
treatment] services that have been found to be medically
necessary is consistent with the language of the Medicaid
30 HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO
Act . . . .” Katie A., 481 F.3d at 1162. For the same reasons
we have discussed with regard to the ADA and Section 504
claims, this claim does not seek relief from the denial of a
FAPE. So, under Fry HDRC can pursue its Medicaid Act
claim without first exhausting IDEA administrative
procedures.
The district court held otherwise but its analysis was
incorrect. The district court concluded that because “it is
DOE’s responsibility to provide educationally necessary
ABA services during school hours[,] Plaintiff’s Medicaid
claim is in effect an IDEA claim and must be exhausted.”
Haw. Disability Rts. Ctr., 2022 WL 3915472 at *11 (internal
citation omitted). This conclusion does not address HDRC’s
contention that DHS violates the Medicaid Act’s early and
periodic screening, diagnostic, and treatment mandate by
delegating ABA services to DOE during school hours. The
State of Hawaii is statutorily required under the Medicaid
Act to provide early and periodic screening, diagnostic, and
treatment services that have been found to be medically
necessary, regardless of their educational relevance. See
Katie A., 481 F.3d at 1162 (citing 42 U.S.C. § 1396a(a)(43)).
HDRC’s Medicaid Act claim does not seek relief from the
denial of a FAPE but instead challenges the policy of DHS,
an agency with no obligations under the IDEA, as violative
of this Medicaid Act mandate. The district court’s analysis
also did not consider that students who are prescribed
medically necessary ABA services by DHS but for whom
DOE does not deem ABA to be educationally relevant
cannot receive this medical accommodation during school
hours, thereby “depriv[ing] Medicaid recipients with Autism
of their [early and periodic screening, diagnostic and
treatment] rights” should their ABA medical needs extend to
at-school supports. As with HDRC’s ADA and Section 504
HAWAI’I DISABILITY RIGHTS CTR. V. KISHIMOTO 31
claims, its Medicaid Act claim does not allege a denial of
FAPE but a failure to provide for medically necessary ABA
services during school hours.
HDRC was not required to exhaust its Medicaid Act
claim under the IDEA’s procedures.
CONCLUSION
HDRC could and was required to exhaust its IDEA claim
via the IDEA’s administrative procedures; none of the
exceptions to IDEA exhaustion apply. But HDRC’s non-
IDEA claims do not allege a denial of a FAPE and so do not
require exhaustion under the IDEA. For the foregoing
reasons, the district court decision is AFFIRMED in part,
REVERSED in part, and REMANDED.