Ninth Circuit Extends the Requirement of Exhaustion of Due Process Complaints as a Prerequisite for Filing Lawsuits to Protection and Advocacy Organizations Alleging IDEA Violations

In the case of Hawai’i Disability Rights Center v. Kishimoto (9th Cir., Nov. 26, 2024, No. 20-17521), the Ninth Circuit recently reviewed a legal issue of whether the Hawai’i Disability Rights Center (“DRC”) must exhaust administrative procedures prior to filing a lawsuit. In Kishimoto, the factual dispute involved whether the Hawai’i Department of Education (“DOE”) and the Hawai’i Department of Human Services (“DHS”) violated the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act (“Section 504”), the Medicaid Act, and the Individuals with Disabilities Education Act (“IDEA”) because of policies that denied students with autism access to medically prescribed applied behavior analysis (“ABA”) services during the school day.[1]

The DRC alleged that the policies limited ABA services to those that are deemed educationally relevant by the DOE, conducted by DOE/DHS contracted providers, and provided to students approved by the DOE. The District Court granted summary judgment to the DOE and DHS on all claims, holding that DRC’s failure to exhaust administrative procedures available under the IDEA was fatal to all of its claims. The matter was appealed to the Ninth Circuit Court of Appeals to decide whether the DRC was required to exhaust administrative procedures under the IDEA prior to filing its lawsuit regarding their ADA, Section 504, and the Medicaid Act claims.

The Ninth Circuit highlighted that none of the claims raised by DRC were “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.”  Under the IDEA, parents and local educational agencies are required to participate in administrative proceedings, commonly referred to as due process hearings, prior to judicial review. The Court held that the DRC as a protection and advocacy organization (although not a parent or local educational agency under the IDEA), and was subjected to the IDEA’s administrative procedures exhaustion requirement. The Court further held that the exceptions to the IDEA exhaustion requirement did not apply. As for the other non-IDEA alleged claims, specifically Section 504, ADA, and Medicaid claims, the Court held that the exhaustion requirement did not apply unless the relief sought in these claims was also available under the IDEA.

This case provides clarification of when entities (such as protection and advocacy organizations), must comply with the exhaustion requirement for IDEA claims. If a school district finds itself in litigation in federal court for IDEA violations filed by a protection and advocacy organization such as DRC, it can now mount a defense if the organization has not first exhausted administrative remedies in a due process hearing for violations of the IDEA.

Should you have any questions concerning the topic of this alert, please do not hesitate to contact the authors or your usual counsel at AALRR for clarification and guidance.

[1] ABA services are a type of therapy that focuses on assisting students with autism or other like spectrum disorders with developing attention, school readiness, behavioral, and social and emotional skills.

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