Hawai`i Disability Rights Center v. Hayashi, et al

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
HAWAI`I DISABILITY RIGHTS
CENTER, in a representative
capacity on behalf of its
constituents;
Plaintiff,
vs.
CHRISTINA KISHIMOTO, in her
official capacity as
superintendent of the state of
Hawai`i, Department of
Education; AND PANKAJ BHANOT, in
his official capacity as
Director of the State of Hawaii,
Department of Human Services;
Defendants.
CIV. NO. 18-00465 LEK-RLP
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
On July 29, 2020, Defendants Christina Kishimoto
(“Kishimoto”), in her official capacity as Superintendent of the
State of Hawai`i, Department of Education (“DOE”), and Pankaj
Bhanot (“Bhanot”), in his official capacity as Director of the
State of Hawai`i, Department of Human Services, (collectively
“Defendants”) filed their Motion for Summary Judgment
(“Motion”). 	[Dkt. no. 88.] 	Plaintiff Hawai`i Disability Rights
Center (“Plaintiff”) filed its memorandum in opposition on
October 2, 2020, and Defendants filed their reply on October 9,
2020. 	[Dkt. nos. 111, 114.] 	This matter came on for hearing on
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October 23, 2020. 	On November 30, 2020, an entering order was
issued informing the parties of this Court’s ruling on the
Motion (“11/30/20 EO Ruling”). 	[Dkt. no. 123.]
On November 19, 2021, the Ninth Circuit Court of
Appeals issued its en banc decision in D.D. ex rel. Ingram v.
Los Angeles Unified School District, 18 F.4th 1043 (9th Cir.
2021). 	On January 21, 2022, this Court issued an entering order
directing the parties to file additional briefing addressing the
application of the reasoning in D.D. ex rel. Ingram to the
instant case. 	[Dkt. no. 143.] 	Defendants filed its memorandum
on February 1, 2022, Plaintiff filed its response on
February 14, 2022, and Defendants filed their reply on
February 28, 2022. 	[Dkt. nos. 144, 145, 146.]
The Motion is now fully briefed. 	The instant Order
supersedes the 11/30/20 EO Ruling. 	Defendants’ Motion is hereby
granted for the reasons set forth below.
BACKGROUND
I. 	Plaintiff’s Allegations
Plaintiff filed this action against Defendants on
November 28, 2018. 	[Complaint, filed 11/28/18 (dkt. no. 1).]
Plaintiff’s Complaint alleges Defendants failed (and continue to
fail) to provide Applied Behavior Analysis (“ABA”) services to
children and young adults diagnosed with Autism Spectrum
Disorder (“ASD” or “Autism”). 	See id. at ¶¶ 1–4. 	Specifically,
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the Complaint alleges “DHS is required by federal law to provide
medically necessary ABA services to Medicaid-eligible
individuals from birth through age 21, under the early and
periodic screening, diagnostic, and treatment mandate (‘EPSDT’)
of the Medicaid Act.” 	[Id. at ¶ 25 (emphasis omitted).] 	“DHS’s
stated policy is that DOE, rather than DHS, will provide ABA
services to Medicaid-eligible students with Autism during school
hours.” 	[Id. at ¶ 26.]
Plaintiff alleges “DHS fails to ensure that medically
necessary ABA is provided during the school day and effectively
limits EPSDT recipients with Autism to the services provided by
DOE in public schools.” 	[Id. at ¶ 27.] 	Plaintiff also alleges
“DHS does not ensure the required ABA services are actually
provided to EPSDT recipient students . . . in DOE public
schools.” 	[Id. at ¶ 31.] 	It further contends that, although
“DOE is required to provide Hawai`i students with disabilities
with a free and appropriate [public] education (‘FAPE’),
pursuant to [the Individuals with Disabilities Education Act
(‘IDEA’),]” [id. at ¶ 32,] “DOE does not provide adequate ABA
services in schools and its limited special education and
related services are insufficient to meet the needs of a student
with Autism,” [id. at ¶ 41].
Plaintiff alleges that, to provide students with
disabilities with a FAPE, DOE is required to prepare an
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Individualized Educational Program (“IEP”) for those students.
It further alleges DOE generally does not include ABA services
as part of the IEPs for students with Autism, even if a licensed
professional determines that ABA services are medically
necessary. 	[Id. at ¶¶ 46–47.] 	According to the Complaint,
“[a]s a result of DOE’s policies and practice, parents of
children with Autism are forced to forgo their child’s rights to
FAPE . . . by withdrawing their child from public school to
receive the ABA services they need . . . .” 	[Id. at ¶ 60.]
Plaintiff asserts the following claims: (1) a 42 U.S.C. § 1983
claim against DOE and DHS for violations of the American with
Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq.
(“Count I”); (2) a § 1983 claim against DOE and DHS for
violations of Section 504 of the Rehabilitation Act, 29 U.S.C.
§ 794 (“Count II”); (3) a § 1983 claim against DHS for
violations of the Medicaid Act, 42 U.S.C. § 1396, et seq.
(“Count III”); and (4) a § 1983 claim against DOE for violations
of the IDEA (“Count IV”).
II. 	Facts of the Case
Plaintiff “is a federally authorized protection and
advocacy system organization.” 	[Defendants’ Concise Statement
of Facts (“Defs.’ CSOF”), filed 7/29/20 (dkt. no. 89), at ¶ 1;
Plaintiff’s Concise Statement of Facts in Opp. to Defendants’
Motion for Summary Judgment (“Pltf.’s CSOF”), filed 10/2/20
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(dkt. no. 112), at ¶ 1 (stating Defs.’ ¶ 1 is not disputed).]
Some of Plaintiff’s constituents include “Hawaii children and
young adults diagnosed with [ASD] who require some level of
[ABA] services.” 	[Defs.’ CSOF at ¶ 2; Pltf.’s CSOF at ¶ 2
(partially disputing Defs.’ ¶ 2 on other grounds).] 	Plaintiff
brings this action “in its representative capacity.” 	[Defs.’
CSOF at ¶ 4; Pltf.’s CSOF at ¶ 4.]
In July 2012, DOE issued an internal memorandum
“stat[ing] that services provided by anyone other than a DOE
employee or DOE contracted provider would interfere with the
DOE’s obligation to implement the student’s IEP and to provide
special education and related services under the IDEA.” 	[Defs.’
CSOF at ¶ 29; Pltf.’s CSOF at ¶ 29.] 	“ABA services must be
included in a student’s IEP if those services have been
determined to be educationally necessary by the student’s IEP
team.” 	[Defs.’ CSOF at ¶ 27; Pltf.’s CSOF at ¶ 27.]
In July and September 2014 respectively, the Centers
for Medicaid and Medical Services issued an informational
bulletin and a Medicaid and Children’s Health Insurance Program
frequently asked questions document. 	[Defs.’ CSOF ¶¶ 18–19;
Pltf.’s CSOF ¶¶ 18–19.] 	Those documents “clarified that
Medicaid agencies must cover medically necessary EPSDT services,
including ABA services if determined to be ‘medically necessary’
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for an individual EPSDT member diagnosed with ASD.” 	[Defs.’
CSOF ¶ 20; Pltf.’s CSOF ¶ 20.]
In January and August 2015, DHS – through its Med-
QUEST Division (“MQD”) – issued memoranda to “inform [QUEST
Integration (‘QI’)] health plans and providers that they are
required to comply with the full range of EPSDT duties and
requirements, including the duty to provide ABA services for
children under 21 years of age with ASD when based on an
individualized determination of medical necessity.” 	[Defs.’
CSOF at ¶¶ 21–22; Pltf.’s CSOF at ¶¶ 21–22.] 	In May 2017, MQD
issued a memorandum (“the May 2017 Memo”) stating that “EPSDT
coverage includes ABA services for children with ASD.” 	[Defs.’
CSOF at ¶ 25; Pltf.’s CSOF at ¶ 25.] 	The May 2017 Memo stated,
in relevant part:
This guidance does not apply to the Department of
Education (DOE) school-based claiming 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 QI 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. . . . 	MQD will reimburse these state
agencies for ABA services provided to Medicaid
beneficiaries.
The ultimate responsibility to ensure that
medically necessary ABA services are delivered to
beneficiaries rests with the QI health plans.
This responsibility is in effect all year,
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whether school is in session or out of session.
QI health plans are expected to coordinate with
the family, DOE and/or EIP 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.
[Defs.’ CSOF, Declaration of Judy Mohr Peterson (“Peterson
Decl.”), Exh. F (“May 2017 Memo”), at PageID #: 1147. 1 ] 	“The May
2017 Memo reflects DHS[’s] current policy with respect to the
provision of ABA services for children under 21 years of age who
are enrolled in the Med-QUEST program.” 	[Defs.’ CSOF at ¶ 26;
Pltf.’s CSOF at ¶ 26.] 	Although the May 2017 Memo stated MQD
would reimburse state agencies for ABA services provided to
Medicaid beneficiaries, in February 2019, Peterson testified
that DOE was not currently “billing for ABA services.” 	[Pltf.’s
CSOF, Declaration of Maile Osika (“Osika Decl.”), Exh. 12
(trans. of 2/22/19 depo. of Peterson), at 13.]
In February 2018, Kishimoto issued a memorandum
regarding ABA services. 	[Defs.’ CSOF at ¶ 30; Pltf.’s CSOF at
¶ 30.] 	According to that memorandum, “[t]he IEP team determines
if ABA services are necessary and appropriate in accordance with
the requirements of the [IDEA] and Hawaii Administrative Rules
Chapter 8-60.” 	[Def.’s CSOF, Declaration of Anne Marie Kalama
1 Judy Mohr Peterson (“Peterson”) is the Administrator of
MQD. 	[Peterson Decl. at ¶ 1.]
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(“Kalama Decl.”), Exh. H (Applied Behavior Analysis memorandum
to DOE Employees from Kishimoto, dated 2/13/18), at PageID
#: 1177. 2 ]
As of December 2019, DOE reported that the official
count of students with ASD was 2,088. 	[Osika Decl., Exh. 10
(DOE Report on Act 205 (2018) Report on Autism Spectrum Disorder
and Applied Behavior Analysis, dated July 2020, with transmittal
letter) (“July 2020 DOE Report”), at 2.] 	As of March 30, 2020,
“402 students receive[d] ABA services as determined by their IEP
team” and 317 of those students were “eligible as ASD.” 	[Id.]
In the instant Motion, Defendants seek summary
judgment, in part, on the grounds that “all counts of the
Complaint filed in this action . . . can be redressed by the
administrative procedures under [IDEA,]” which required the
parents of Plaintiff’s constituents “to exhaust administrative
remedies before filing a civil lawsuit.” 	[Mem. in Supp. of
Motion at 1.]
DISCUSSION
I. 	Preliminary Issues
A. 	Additional Discovery
Plaintiff seeks additional discovery and a
continuance, pursuant to Fed. R. Civ. P. 56(d). 	[Mem. in Opp.
2 Anne Marie Kalama is the Director of DOE’s Exceptional
Support Branch. 	[Kalama Decl. at ¶ 1.]
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at 26.] 	Defendants object to Plaintiff’s request. 	“If a
nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its
opposition [to a motion for summary judgment], the court may
. . . allow time to obtain affidavits or declarations or to take
discovery[.]” 	Fed. R. Civ. P. 56(d)(2). 	“Moreover, ‘[t]he
burden is on the party seeking additional discovery to proffer
sufficient facts to show that the evidence sought exists.’”
Fleck v. CitiMortgage, Inc., CIVIL NO. 13-00683 DKW KSC, 2014 WL
12591350, at *3 (D. Hawai`i Sept. 26, 2014) (alteration in
Fleck) (quoting Nidds v. Schindler Elevator Corp., 113 F.3d 912,
921 (9th Cir. 1996)). 	“Whether to deny a Rule 56(d) request for
further discovery by a party opposing summary judgment is within
the discretion of the district court.” 	Id. (citation omitted).
Plaintiff states additional discovery is appropriate
because it “has not completed discovery and intends to take
Defendants’ depositions . . . .” 	[Mem. in Opp. at 26.]
Plaintiff’s request is denied, however, because it “do[es] not
identify particular facts that their requested discovery would
reveal, and do[es] not indicate how any discovery they intend to
take would defeat [Defendants’] summary judgment arguments.”
See Fleck, 2014 WL 12591350, at *3. 	Moreover, the Motion was
filed over two years ago, and additional discovery would not
likely change the outcome of the issues discussed in this Order.
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B. 	Evidentiary Objections
In addition to filing its memorandum in opposition,
Plaintiff filed a separate document titled “Plaintiff’s
Evidentiary Objections to Defendants’ Declarations of Judy Mohr
Peterson and Annie Marie Kalama” (“Evidentiary Objections”).
[Filed 10/2/20 (dkt. no. 113).] 	Plaintiff’s Evidentiary
Objections contest the admissibility of some of Defendants’
evidence in support of their Motion. 	Defendants argue the Court
should not consider the objections because the filing violates
Local Rule 56.1. 	[Reply at 14-15.] 	Defendants also contend the
Evidentiary Objections “operate[] to extend the Opposition brief
beyond the page limit in [Local Rule ]7.4 without leave of
court. 	[Id. (citing LR7.4(a)).] 	Upon reviewing Plaintiff’s
Evidentiary Objections, most of the objections are not relevant
here because the Court does not rely upon the challenged
evidence. 	However, three of the objections are relevant and the
Court addresses each one in turn.
Plaintiff challenges paragraph six in the Peterson
Declaration on the ground that it is inadmissible hearsay. 	See
Evidentiary Objections at PageID #: 1659. 	Plaintiff’s objection
is overruled because Plaintiff admitted to the evidence in its
responsive CSOF and, therefore, the Court did not rely on
paragraph six of the Peterson Declaration. 	See Defs.’ CSOF at
¶ 20; Pltf.’s CSOF at ¶ 20. 	Plaintiff also argues the May 2017
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Memo is inadmissible because it “asserts legal conclusions
regarding section 1905(r) of the Social Security Act.”
[Evidentiary Objections at PageID #: 1663 (citations omitted).]
Plaintiff cites to G. v. Hawai`i, Department of Human Services,
703 F. Supp. 2d 1112, 1128 (D. Hawai`i 2010), in contending that
the May 2017 Memo asserts legal conclusions. 	See Evidentiary
Objections at PageID #: 1663. 	But, that case is inapposite.
There, the district court concluded that a doctor’s preliminary
and final report contained an inadmissible legal opinion that
the applicable statute and implementing regulations were
violated. 	See G., 703 F. Supp. 2d at 1128. 	Here, Plaintiff’s
objection is overruled because the May 2017 Memo is not an
expert opinion.
Finally, Plaintiff challenges the February 2018
memorandum that Kishimoto issued. 	See Evidentiary Objections at
PageID #: 1663. 	Plaintiff states the memorandum “asserts legal
conclusions regarding the obligations of the State of Hawai`i
Department of Education . . . .” 	[Id.] 	Plaintiff, however,
does not cite to any legal authority to support its objection.
The memorandum is not an expert opinion. 	Rather, it is an
internal memorandum from Kishimoto to DOE employees. 	See Exh. H
at PageID #: 1177. 	Plaintiff’s objections are therefore
overruled.
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II. 	Relevant Statutory Framework
The United States Supreme Court has stated:
The IDEA offers federal funds to States in
exchange for a commitment: to furnish a “free
appropriate public education”—more concisely
known as a FAPE—to all children with certain
physical or intellectual disabilities. 	[20
U.S.C. § 1412(a)(1)(A)]; see [20 U.S.C.]
§ 1401(3)(A)(i) (listing covered disabilities).
As defined in the Act, a FAPE comprises “special
education and related services” — both
“instruction” tailored to meet a child’s “unique
needs” and sufficient “supportive services” to
permit the child to benefit from that
instruction. 	§§ 1401(9), (26), (29); see Board
of Ed. of Hendrick Hudson Central School Dist.,
Westchester Cty. v. Rowley, 458 U.S. 176, 203,
102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). 	An
eligible child, as this Court has explained,
acquires a “substantive right” to such an
education once a State accepts the IDEA’s
financial assistance. 	Smith v. Robinson, 468
U.S. 992, 1010, 104 S. Ct. 3457, 82 L. Ed. 2d 746
(1984).
Under the IDEA, an “individualized education
program,” called an IEP for short, serves as the
“primary vehicle” for providing each child with
the promised FAPE. 	Honig v. Doe, 484 U.S. 305,
311, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988); see
[20 U.S.C.] § 1414(d). 	(Welcome to—and apologies
for—the acronymic world of federal legislation.)
Crafted by a child’s “IEP Team”—a group of school
officials, teachers, and parents—the IEP spells
out a personalized plan to meet all of the
child’s “educational needs.”
§§ 1414(d)(1)(A)(i)(II)(bb), (d)(1)(B). 	Most
notably, the IEP documents the child’s current
“levels of academic achievement,” specifies
“measurable annual goals” for how she can “make
progress in the general education curriculum,”
and lists the “special education and related
services” to be provided so that she can “advance
appropriately toward [those] goals.”
§§ 1414(d)(1)(A)(i)(I), (II), (IV)(aa).
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Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 748–49 (2017) (some
alterations in Fry).
The IDEA, however, is not the only federal statute
protecting the interests of students with disabilities. 	For
instance,
[t]he ADA promises non-discriminatory access to
“the services, programs, or activities” of any
public facility, 42 U.S.C. § 12132, and requires
“reasonable modifications” to the facility’s
“policies, practices, or procedures” to avoid
discrimination, 28 C.F.R. § 35.130(b)(7)(i).
Section 504 of the Rehabilitation Act imposes
similar obligations on any federally funded
“program or activity.” 	29 U.S.C. § 794(a).
“[B]oth statutes authorize individuals to seek
redress for violations of their substantive
guarantees by bringing suits for injunctive
relief or money damages.” 	Fry, 137 S. Ct. at
750.
When disability issues arise in the school
context, the substantive requirements of the IDEA
may overlap with those of these other statutes.
After the Supreme Court read the IDEA as
providing the “exclusive avenue” for a child with
a disability to challenge his special education
program, Smith v. Robinson, 468 U.S. 992, 1009,
104 S. Ct. 3457, 82 L. Ed. 2d 746 (1984),
Congress amended the IDEA to provide that:
Nothing in [the IDEA] shall be construed to
restrict or limit the rights, procedures,
and remedies available under the
Constitution, the [ADA], [the Rehabilitation
Act], or 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 [the IDEA], the [IDEA’s
administrative procedures] shall be
exhausted to the same extent as would be
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required had the action been brought under
[the IDEA].
20 U.S.C. § 1415(l). 	This provision makes plain
that the IDEA does not preempt other statutory
claims by children with disabilities, but
requires that a plaintiff first exhaust the
administrative process if “seeking relief that is
also available under” the IDEA. 	Id. 	It is, in
other words, “designed to channel requests for a
FAPE (and its incidents) through IDEA-prescribed
procedures,” Payne v. Peninsula Sch. Dist., 653
F.3d 863, 882 (9th Cir. 2011) (en banc), and
prevents plaintiffs from using artful pleading to
litigate IDEA issues without first utilizing the
IDEA process, see S. Rep. No. 99-112, at 12, 15
(1985) (add’l views); H.R. Rep. No. 99-296, at 7
(1985).
D.D. ex rel. Ingram v. L.A. Unified Sch. Dist., 18 F.4th 1043,
1049 (9th Cir. 2021) (en banc) (some alterations in D.D.).
Relevant to the central argument of Defendants’
Motion, “Section 1415(l) requires that a plaintiff exhaust the
IDEA’s procedures before filing an action under the ADA, the
Rehabilitation Act, or similar laws when (but only when) her
suit ‘seek[s] relief that is also available’ under the IDEA.”
Fry, 137 S. Ct. at 752 (alteration in Fry). 	A suit seeks relief
that is also available under the IDEA only if it seeks relief
for the denial of a FAPE. 	Id. at 752-53. 	As such, § 1415(l)
“requires exhaustion when the gravamen of a complaint seeks
redress for a school’s failure to provide a FAPE, even if not
phrased or framed in precisely that way.” 	Id. at 755.
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In Fry, the Supreme Court provided two clues to assist
with the inquiry into whether the gravamen of a complaint
concerns the denial of a FAPE or disability-based
discrimination. 	The first clue
can come from asking a pair of hypothetical
questions. 	First, 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? 	When the answer
to those questions is yes, a complaint that does
not expressly allege the denial of a FAPE is also
unlikely to be truly about that subject; after
all, in those other situations there is no FAPE
obligation and yet the same basic suit could go
forward. 	But when the answer is no, then the
complaint probably does concern a FAPE, even if
it does not explicitly say so; for the FAPE
requirement is all that explains why only a child
in the school setting (not an adult in that
setting or a child in some other) has a viable
claim.
Id. at 756 (emphases in Fry). 	The second clue comes from
looking at the history of the proceedings because “prior pursuit
of the IDEA’s administrative remedies will often provide strong
evidence 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 757 (footnote omitted).
III. Exhaustion in the Instant Case
Defendants argue Plaintiff must exhaust their claims
under the IDEA because “Plaintiff is seeking an IDEA remedy or
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its functional equivalent, prospective injunctive relief to
alter the students’ IEPs, and to enforce its constituents’
rights to a FAPE.” 	[Mem. in Supp of Motion at 12 (citation
omitted).] 	Plaintiff contends that, because it is required by
state and federal law to advocate for the rights of people with
disabilities, as a Protection and Advocacy Agency, it is not
required to exhaust administrative remedies. 	See Mem. in Opp.
at 10–11. 	Alternatively, Plaintiff argues that, even if the
exhaustion requirement applies to it, it meets the exceptions to
exhaustion. 	See id. at 12-13.
A. 	Whether the Exhaustion Requirement Applies to
Plaintiff if It Seeks Relief Under the IDEA
Section 1415(l) states that, “before the filing of a
civil action under such laws seeking relief that is also
available under this subchapter, the procedures under
subsections (f) and (g) shall be exhausted . . . .” 	20 U.S.C.
§ 1415(l). 	Section 1415(f) and (g) set forth the procedures for
an impartial due process hearing for complaints filed by
“parents or the local educational agency,” § 1415(f), and any
aggrieved party’s right to appeal the findings and decision made
by a local educational agency, see § 1415(g).
Plaintiff asserts that, because it is neither a parent
nor a local educational agency, the IDEA’s exhaustion
requirement is inapplicable to it – assuming that it seeks
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relief under the IDEA. 	See Mem. in Opp. at 11. 	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. 	See S.S. ex rel. S.Y. v. City of Springfield, 332 F.
Supp. 3d 367, 378 (D. Mass. 2018). 	Thus, if Plaintiff seeks
relief under the IDEA, exhaustion is required.
B. 	Whether Plaintiff’s Complaint Seeks
Redress for a Failure to Provide a FAPE
The dispositive question here is whether “the gravamen
of [Plaintiff’s C]omplaint seeks redress for [DOE’s] failure to
provide a FAPE . . . .” 	See Fry, 137 S. Ct. at 755. 	The answer
is yes. 	Plaintiff asserts a claim directly under the IDEA in
Count IV. 	Moreover, Plaintiff’s allegations taken as a whole
show that it is seeking redress for DOE’s failure to provide a
FAPE to its constituents. 	For instance, Plaintiff alleges DOE
fails to provide ABA services to students with ASD during school
hours, which prevents those students from receiving a FAPE.
See, e.g., Complaint at ¶¶ 44–46, 60, 114. 	Although Plaintiff
asserts DHS fails to provide medically necessary ABA services
during school hours, see id. at ¶ 27, DOE is responsible for
providing ABA services during school hours, see Peterson Decl.,
Exh. F (May 2017 Memo), at PageID #: 1147. 	The crux of
Plaintiff’s Complaint, then, necessarily depends on the
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allegations that DOE does not provide educationally necessary
ABA services to students with ASD during school hours, despite
those same students potentially receiving medically necessary
ABA services before and after school hours.
Plaintiff also alleges that, because ABA services are
not adequately provided to students with ASD during school
hours, DOE’s “limited special education and related services are
insufficient to meet the needs of a student with Autism.”
[Complaint at ¶ 41.] 	DOE’s alleged failure to provide ABA
services stems from its purported “refus[al] to . . . recognize
students’ Autism diagnoses when assessing students’ needs during
the development of an IEP.” 	[Id. at ¶ 48.] 	Plaintiff, in
effect, contends the development of IEPs for students with ASD
is fundamentally flawed. 	See, e.g., id. at ¶¶ 47, 49, 58–59.
These allegations concern the underlying issue of whether
students with ASD can receive a FAPE.
Applying the two Fry clues is also instructive here.
First, Plaintiff could not “have brought essentially the same
claim if the alleged conduct had occurred at a public facility
that was not a school . . . .” 	See Fry, 137 S. Ct. at 756
(emphasis in Fry). 	That is, Plaintiff could not assert its
claims against, for example, “a public theater or library”
because those entities are not required to provide students with
ABA services or IEPs. 	See id. 	Similarly, “an employee or
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visitor” at the school could not “press[] essentially the same
grievance” because DOE is not required to provide those
individuals with ABA services or IEPs. 	See id. 	Second, some of
the parents of Plaintiff’s constituents invoked the IDEA’s
formal procedures, see, e.g., Complaint at ¶¶ 75, 82, which
further strengthens the finding that “the gravamen of [the] suit
is the denial of a FAPE,” see Fry, 137 S. Ct. at 757.
Accordingly, the Court concludes that Plaintiff’s Complaint
seeks redress, on behalf of its constituents, for failure to
receive a FAPE.
C. 	The Three Exceptions to Exhaustion
Plaintiff argues that, even if its Complaint seeks
redress under the IDEA, exhaustion is not required because the
three exceptions to exhaustion apply. 	See Mem. in Opp. at 12.
[E]xhaustion is not required when (1) the
administrative process would be “futile,” (2) the
claim arises from a policy or practice “of
general applicability that is contrary to law,”
or (3) it is improbable “that adequate relief can
be obtained by pursing administrative remedies
(e.g. the hearing officer lacks the authority to
grant the relief sought).” 	Hoeft [v. Tucson
Unified Sch. Dist.], 967 F.2d [1298,] 1303–04
[(9th Cir. 1992)].
Paul G. ex rel. Steve G. v. Monterey Peninsula Unified Sch.
Dist., 933 F.3d 1096, 1101 (9th Cir. 2019). 	Plaintiff appears
to conflate futility and adequacy, see Mem. in Opp. at 13, but
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they are separate exceptions, and the Court addresses each
separately.
1. 	Futility
The administrative process can be deemed futile when
“[s]erious due process violations . . . have the practical
effect of denying the plaintiffs a forum for their
grievances . . . .” 	Hoeft, 967 F.2d at 1304 (collecting cases).
Futility can also be shown when “plaintiffs ha[ve] already taken
all measures to secure administrative relief which could
reasonably be expected of them.” 	Kerr Ctr. Parents Ass’n v.
Charles, 897 F.2d 1463, 1470 (9th Cir. 1990). 	Here, Plaintiff
has not demonstrated that the parents of its constituents have
been denied a forum for their grievances, either because no
forum exists or because due process violations in the available
forum effectively preclude them from obtaining any relief. 	In
other words, Plaintiff does not contend that DOE fails to
provide its constituents with meaningful due process hearings.
Plaintiff also has not established that its constituents have
taken all reasonable measures to secure administrative relief.
Indeed, some of its constituents did seek administrative
remedies and were ultimately granted educationally-related ABA
services. 	See Complaint at ¶¶ 75, 82. 	The futility exception,
therefore, does not apply.
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2. 	General Applicability
“[A] policy or practice is not necessarily ‘systemic’
or ‘of general applicability’ simply because it ‘applie[s] to
all students’ or because the ‘complaint is structured as a class
action seeking injunctive relief.’” 	Student A ex rel. Parent A
v. S.F. Unified Sch. Dist., 9 F.4th 1079, 1084 (9th Cir. 2021)
(some alterations in Student A) (quoting Hoeft, 967 F.2d at
1304, 1308). 	Rather,
a claim is “systemic” if it implicates 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 [IDEA];
but . . . it is not “systemic” if it involves
only a substantive claim having to do with
limited components of a program, and if the
administrative process is capable of correcting
the problem.
Doe ex rel. Brockhuis v. Ariz. Dep’t of Educ., 111 F.3d 678, 682
(9th Cir. 1997). 	A plaintiff “must demonstrate in addition that
the underlying purposes of exhaustion would not be furthered by
enforcing the requirement.” 	Hoeft, 967 F.2d at 1304.
Plaintiff argues it “challenges the legality of the
DOE’s entire systemic . . . policy to disregard medical ABA
prescriptions and instead provide ABA or ABA-like services
during school hours only when: (1) the DOE’s lesser services are
attempted and do not work; and (2) the child exhibits extreme or
severe behaviors at school.” 	[Mem. in Opp. at 14-15 (citations
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omitted).] 	Defendants contend Plaintiff’s challenge is not
systemic because they challenge “one component of the special
education program and not the policies of the entire education
system.” 	[Reply at 6 (citing Paul G., 933 F.3d at 1096).] 	The
Court agrees with Defendants.
In Paul G., the Ninth Circuit held that the
plaintiff’s claim was not systemic because he sought “relief
related to only one component of the school district’s special
education program — in-state residential facilities for adult
students.” 	933 F.3d at 1102 (citations omitted). 	Similarly, in
Hoeft, the Ninth Circuit held that the plaintiff’s complaint
“focused[d] on the shortcomings of a particular component of
[the school district’s] special education program—extended
school year services[,]” and, therefore, “[t]he alleged
violations d[id] not rise to a truly systemic level in the sense
that the IDEA’s basic goals [were] threatened on a system-wide
basis.” 	967 F.2d at 1305. 	As in Paul G. and Hoeft, here
Plaintiff does not assert that the entire special education
program is flawed. 	Instead, it alleges one component of the
program – namely, IEP development related to educationally
necessary ABA services for students with ASD – prevents its
constituents from receiving a FAPE. 	Because Plaintiff only
contests one aspect of the special education program, “the
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IDEA’s basic goals are [not] threatened on a system-wide basis.”
See id.
Moreover, although Plaintiff argues DOE disregards
medically necessary ABA services for students with ASD, DOE is
solely responsible for determining when ABA services are
educationally necessary for students with ASD during school
hours. 	See Peterson Decl., Exh. F (May 2017 Memo), at PageID
#: 1147. 	Plaintiff does not provide the number of students
eligible as ASD who receive medically necessary ABA services
outside of school but are denied educationally necessary ABA
services during school hours. 	Some students with ASD, however,
do receive educationally necessary ABA services during school
hours. 	See, e.g., Osika Decl., Exh. 10 (July 2020 DOE Report)
at 2. 	To the extent that Plaintiff argues DOE’s process in
determining whether ABA services are educationally necessary
creates “across-the-board administrative barriers,” [Mem. in
Opp. at 16,] its argument is unpersuasive because Plaintiff’s
allegations ultimately concern “bad results, not descriptions of
unlawful policies or practices,” see Student A, 9 F.4th at 1085.
Finally, pursuing administrative remedies would
further the purpose of the exhaustion requirement. 	As the Ninth
Circuit stated:
Exhaustion of the administrative process allows
for the exercise of discretion and educational
expertise by state and local agencies, affords
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full exploration of technical educational issues,
furthers development of a complete factual
record, and promotes judicial efficiency by
giving these agencies the first opportunity to
correct shortcomings in their educational
programs for disabled children.
Hoeft, 967 F.2d at 1303 (citing McKart v. United States, 395
U.S. 185, 193–95, 89 S. Ct. 1657, 1662–63(1969)). 	“All of these
important interests could be furthered by exhaustion in this
case.” 	See Student A, 9 F.4th at 1085. 	For instance,
exhaustion would likely result in a detailed record that
explains the specific development of IEPs related to
educationally necessary ABA services as applied to individual
students. 	Such a detailed record would be helpful in
determining whether DOE has unlawful procedures or practices.
In light of the foregoing, the general applicability exception
does not apply.
3. 	Inadequacy
“Administrative remedies are generally inadequate
where structural, systemic reforms are sought.” 	Hoeft, 967 F.2d
at 1309 (citations omitted). 	“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. (citation omitted). 	“[T]he
relevant inquiry is whether the administrative process is
adequately equipped to address and resolve the issues
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presented.” 	Id. (citation omitted). 	Here, the administrative
remedies are not inadequate. 	Plaintiff’s claims do not concern
structural, systemic reform. 	See supra Discussion
Section III.C.2. 	Plaintiff also does not contest the adequacy
of the administrative process. 	Although Plaintiff contends the
administrative remedies are inadequate because they do not
include system-wide injunctive relief, see Mem. in Opp. at 14,
“the mere unavailability of injunctive relief does not render
the IDEA’s administrative process inadequate,” Hoeft, 967 F.2d
at 1309. 	As such, the inadequacy exception to exhaustion does
not apply.
D. 	Exhaustion Applied to the ADA and Section 504 Claims
Plaintiff’s Complaint seeks redress for DOE’s alleged
failure to provide its constituents with a FAPE, and it has
failed to show that any of the exceptions to exhaustion apply.
Plaintiff argues that, even if it must ensure that its IDEA
claim is exhausted, it is not required to exhaust its ADA and
Section 504 claims. 	Plaintiff is mistaken. 	The IDEA’s
exhaustion provision “specifies that exhaustion is required
‘before the filing of a civil suit . . . seeking relief that is
also available under [the IDEA].’” 	Payne, 653 F.3d at 875
(alterations and emphasis in Payne) (quoting 20 U.S.C.
§ 1415(l)). 	This means that
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exhaustion is clearly required when a plaintiff
seeks an IDEA remedy or its functional
equivalent. 	For example, if a disabled student
files suit under the ADA and challenges the
school district’s failure to accommodate his
special needs and seeks damages for the costs of
a private school education, the IDEA requires
exhaustion regardless of whether such a remedy is
available under the ADA, or whether the IDEA is
mentioned in the prayer for relief. 	Again, in
that case the “relief . . . is also available”
under the IDEA, see 20 U.S.C. § 1412(a)(10), and
the student must exhaust his IDEA remedies before
seeking parallel relief under the ADA.
Id. (alteration in Payne). 	The parents of Plaintiff’s
constituents must exhaust the IDEA’s administrative process.
This requirement applies to Plaintiff’s ADA and Section 504
claims because those claims seek relief that is also available
under the IDEA.
E. 	Exhaustion Applied to the Medicaid Claim
Defendants argue Plaintiff’s Medicaid claim
(Count III) is effectively a claim for denial of a FAPE and,
therefore, must be exhausted under the IDEA as well. 	See Mem.
in Supp. of Motion at 25. 	Plaintiff contends its Medicaid claim
is independent from its other claims because it asserts that
“DHS fails to ‘provide and ensure access to medically necessary
ABA services . . . during school hours’ and that its delegation
to the DOE for services at school violates the Medicaid
Act . . . .” 	[Mem. in Opp. at 22 (emphasis omitted) (quoting
CSF ¶¶ 10–11).]
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The Ninth Circuit has held that
under the EPSDT provisions [of the Medicaid Act],
states have an obligation to cover every type of
health care or service necessary for EPSDT
corrective or ameliorative purposes that is
allowable under [42 U.S.C.] § 1396d(a). 	The
states also have an obligation to see that the
services are provided when screening reveals that
they are medically necessary for a child. 	This
obligation is created by [42 U.S.C.]
§ 1396a(a)(43)(C), which states that a state plan
must provide for arranging, directly or through
referral, necessary corrective treatment under
the EPSDT obligation. 	See
§ 1396a(a)(43)(C) . . . .
Katie A., ex rel. Ludin v. Los Angeles Cnty., 481 F.3d 1150,
1158 (9th Cir. 2007). 	“States also must ensure that the EPSDT
services provided are reasonably effective.” 	Id. at 1159.
“While the states must live up to their obligations to provide
all EPSDT services, the statute and regulations afford them
discretion as to how to do so.” 	Id. 	“In general, the EPSDT
provisions require only that the individual services listed in
§ 1396d(a) be provided, without specifying that they be provided
in any particular form.” 	Id. at 1157.
DHS ensures ABA services are provided to individuals
with ASD before and after school when medically necessary. 	See
Peterson Decl., Exh. F (May 2017 Memo) at PageID #: 1147. 	Thus,
Plaintiff does not argue DHS has failed to provide any medically
necessary ABA services to all students with ASD. 	Plaintiff,
instead, contends DHS should also be providing medically
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necessary ABA services to students with ASD during school hours.
Specifically, it relies on Chisholm v. Hood, 110 F. Supp. 2d 499
(E.D. La. 2000), to argue “DHS cannot abandon EPSDT recipients
during the school day by forcing them to accept the DOE’s ABA
providers where those providers are not qualified or licensed
and are providing services that the DHS does not recognize for
Medicaid reimbursement.” 	[Mem. in Opp. at 24 (citing Chisholm,
110 F. Supp. 2d at 506).] 	Plaintiff’s argument is unpersuasive.
Chisholm is not binding on this Court, but even if this Court
considered the reasoning in that case, it does not support
Plaintiff’s contention. 	There, the district court stated “that
schools are not under the EPSDT mandate to provide all services
needed to correct or ameliorate children’s health conditions.
Rather, the schools’ mandate is to provide services that will
benefit children’s schooling and has additionally been
interpreted as applying only to services during school hours.”
Chisholm, 110 F. Supp. 2d at 507 (citing Cedar Rapids Community
Sch. Dist. v. Garret, 526 U.S. 66, 72–75, 119 S. Ct. 992, 143 L.
Ed. 2d 154 (1999)).
The district court there also concluded that the
agency strictly limited medically necessary services to only
schools, which prohibited inclusion of those services within
home health services. 	Id. at 506. 	As such, the agency’s
practices prevented the class representative from receiving any
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of the medically necessary services because she was confined to
her home. 	Id. 	The court stated that “[a] policy which
completely prevents eligible recipients from receiving these
medically necessary services can hardly be considered as
complying with the federal mandate.” 	Id. (emphasis added).
Unlike in Chisholm, here, medically necessary ABA services are
not completely prevented from being provided. 	Indeed, those
services are provided to qualified individuals at all times,
except during school.
To the extent that Plaintiff argues DHS must provide
medically necessary ABA services to students during school
hours, such an argument fails because it is DOE’s responsibility
to provide educationally necessary ABA services during school
hours. 	See Peterson Decl., Exh. F (May 2017 Memo), at PageID
#: 1147. 	Plaintiff’s Medicaid claim is in effect an IDEA claim
and must be exhausted.
F. 	Exhaustion Summary
There are no genuine issues of material fact, and
Plaintiff’s ADA, IDEA, and Section 504 claims on behalf of its
constituents fail as a matter of law because those claims were
not exhausted before the filing of this suit. 	Plaintiff’s
Medicaid claim must also be exhausted insofar as it is a veiled
IDEA claim. 	Accordingly, summary judgment is granted in favor
of Defendants on Counts I, II, III, and IV. 	See Fed. R. Civ. P.
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56(a) (stating summary judgment shall be granted “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law”).
IV. 	Plaintiff’s § 1983 Claims
Defendants contend Plaintiff is precluded from
asserting § 1983 claims for alleged violations of the IDEA,
Section 504 of the Rehabilitation Act, and the ADA. 	See Mem. in
Supp. of Motion at 23. 	Plaintiff argues its claims under § 1983
are proper. 	[Mem. in Opp. at 20.]
In general, “[a] plaintiff alleging a
violation of a federal statute will be permitted
to sue under § 1983 unless (1) ‘the statute
[does] not create enforceable rights, privileges,
or immunities within the meaning of § 1983,’ or
(2) ‘Congress has foreclosed such enforcement of
the statute in the enactment itself.’” 	Wilder v.
Va. Hosp. Ass’n, 496 U.S. 498, 508, 110 S. Ct.
2510, 110 L. Ed. 2d 455 (1990) (quoting Wright v.
City of Roanoke Redevelopment & Hous. Auth., 479
U.S. 418, 423, 107 S. Ct. 766, 93 L. Ed. 2d 781
(1987) (alteration in original) (footnote
omitted)). 	Congress’ intent to foreclose § 1983
actions for the violation of certain statutes may
be implied when “the statutes at issue themselves
provide[] for private judicial remedies, thereby
evidencing congressional intent to supplant the
§ 1983 remedy.” 	Wright, 479 U.S. at 427.
As to the IDEA, the Ninth Circuit, in
Blanchard v. Morton Sch. Dist., 509 F.3d 934, 938
(9th Cir. 2007), “join[ed] the First, Third,
Fourth, and Tenth Circuits [by] hold[ing] that
the comprehensive enforcement scheme of the IDEA
evidences Congress’ intent to preclude a § 1983
claim for the violation of rights under the
IDEA.”
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As to the ADA and Rehabilitation Act,
Plaintiffs cannot recover under § 1983. “[A]
plaintiff cannot bring an action under 42 U.S.C.
§ 1983 . . . to vindicate rights created by
Title II of the ADA or Section 504 of the
Rehabilitation Act.” 	Vinson v. Thomas, 288 F.3d
1145, 1156 (9th Cir. 2002). 	The comprehensive
remedial scheme of those acts bar such claims.
Id. 	Further, courts addressing this issue have
found that “the ADA and Rehabilitation Act
provide ‘sufficiently comprehensive’ remedies for
violations of plaintiff’s rights,” such that a
plaintiff is foreclosed from recovering under
§ 1983 as well. 	Bartlett v. N.Y. State Bd. of
Law Examiners, 970 F. Supp. 1094, 1145 (S.D.N.Y.
1997), aff’d in part and vacated in part on other
grounds, 156 F.3d 321 (2d Cir. 1998), vacated on
other grounds, 527 U.S. 1031, 119 S. Ct. 2388,
144 L. Ed. 2d 790 (1999); see Chernoff v. City of
N.Y., 2009 WL 816474, at *5 n. 7 (E.D.N.Y.
Mar. 26, 2009) (citing Bartlett, 970 F. Supp. at
1145); Credle–Brown v. Conn. Dep’t of Children &
Families, 2009 WL 1789430, at *1 (D. Conn.
June 24, 2009)).
Jefferies v. Albert, Civil No. 09-00156 JMS/KSC, 2009 WL
4064799, at *7 (D. Hawai`i Nov. 24, 2009) (alterations in
Jefferies). 	Here, Plaintiff cannot bring its IDEA, ADA, and
Section 504 claims under § 1983. 	As such, summary judgment is
granted in favor of Defendants on Counts I, II, and IV for this
additional reason.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion for
Summary Judgment, filed on July 29, 2020, is HEREBY GRANTED, and
summary judgment is granted in favor of Defendants as to all of
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Plaintiff’s claims. 	The Clerk’s Office is directed to enter
final judgment and close the case immediately.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 31, 2022.
HAWAII DISABILITY RIGHTS CENTER, ETC. VS. CHRISTINA KISHIMOTO,
ETC., ET AL; CV 18-00465 LEK-RLP; ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
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