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 LL