Hawai`i Disability Rights Ctr. v. Kishimoto

• Decision Date: 31 August 2022
• Docket Number: Civ. 18-00465 LEK-RLP
• Parties: HAWAI'I DISABILITY RIGHTS CENTER, in a representative capacity on behalf of its constituents; Plaintiff, v. 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.
• Court: U.S. District Court — District of Hawaii

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HAWAI'I DISABILITY RIGHTS CENTER, in a representative capacity on behalf of its constituents; Plaintiff, v. 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

United States District Court, D. Hawaii

August 31, 2022

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Leslie E. Kobayashi, United States District Judge

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 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, 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 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 (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' 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, 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 (“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...