Disability Rights in the Context of Child Care Chapter One Disability Rights in the Context of Child Care Abby J. Cohen State TA Specialist, NCCIC National Early Childhood Inclusion Institute, 2006 Disclaimer: The following slides do not represent legal advice. Due to law content changing, you should consult with a lawyer if you have specific legal questions or concerns.

Background History of discrimination Attitudes toward people with disabilities Law both leads and follows Recognizing benefits of inclusion

Distinguishing Types of Laws Enactment of laws to protect civil rights Concern with discrimination by public accommodations Concern with discrimination by publicly funded entities Enactment of laws to provide services by entitlement

Primary Federal Laws Civil rights laws Section 504 of the Rehabilitation Act of 1973–applies to federally funded programs Americans with Disabilities Act (ADA) 1990–providing for equal rights to public accommodations

Primary Federal Laws (cont.) Entitlements to services Individuals with Disabilities Education Act (IDEA)–provides specified services by right to eligible persons with disabilities; reauthorized in 2004

Structure of the ADA Prohibits discrimination in or by: Employment (Title I) State and local governments (Title II) Public accommodations (Title III) Public transportation [Title II(b) and Title III(b)] Telecommunications (Title IV)

When Are Programs Required to Admit a Child with a Disability? Scenario: A child with a disability requests enrollment into a child care program. Evaluate the individual needs of the child with a disability. Follow the evaluation process to determine the program’s rights and responsibilities.

Yes No No Yes Yes No No No Yes Yes Yes Yes No No Yes Yes No Yes No Does the child’s condition pose a direct threat? Can the direct threat be eliminated through reasonable modifications? This child cannot be reasonably accommodated at this point. Reassess when direct threat can be eliminated Yes No No Identify ways to reasonably accommodate the needs of the child. Is this a new facility or are major renovations being made? Renovated area and new facilities (after 1/26/96) must be fully compliant with ADAAG regulations Yes Yes No Do you need to reasonably modify policies, practices, and procedures to accommodate the child? Does the child need auxiliary aids and services to ensure effective communication? Do you need to remove any architectural barriers from an already existing facility to accommodate the child? No No Yes The child can be reasonably accommodated. Admit the child into your program. Yes Yes Will removing barriers be readily achievable? Will providing this impose an undue burden or fundamentally alter the nature of your program? Yes Will changing policies and practices fundamentally alter the nature of your program? No No Yes Yes No Yes Are there any reasonable alternatives to accommodate the child? This child does not need to be accepted by your program now. If reasonably possible, set long-term goals to enable your program to meet similar needs in the future. No

Public Accommodations No public funding required; just must be open to the public Programs operated by religious organizations exempted Child care centers and family child care homes covered U.S. Territories must comply; Tribes cannot be sued by individuals but can be sued by the Federal Government

ADA Definition of Disability A physical or mental impairment which substantially limits one or more major life activities When determining whether a “disability” is present, mitigating or corrective measures are taken into account (medicine, prosthesis)

Major Life Activities Federal law defines in regs to include: Walking Seeing Hearing Learning Taking care of oneself Performing manual tasks; must be of central importance to daily life

ADA Protects Several Groups Individuals with disabilities as defined by ADA Individuals with a record of having a disability Individuals who are regarded as having a disability Individuals or entities associated with a person with a disability

Direct Threat: A Narrow Exception Rarely, person with disabilities posing a significant risk to others may be excluded if risk can’t be eliminated by modifications

What Must Providers Do? Develop eligibility/admissions criteria that do not screen out or tend to screen out persons with disabilities Make reasonable modifications to policies, practices and procedures Provide for equally effective communication Comply with physical access requirements

Reasonable Accommodations In determining whether an accommodation is reasonable, one looks to the resources of the program, tax credits and deductions (IRS Code Sections 44 and 190), and any available community resources What is reasonable is based on conditions at a particular point in time, and this can change!

Eligibility / Admissions Must eliminate all eligibility criteria which explicitly state children with disabilities not included Must eliminate admissions criteria such as “toilet trained” unless made clear doesn’t apply to children with disabilities May impose legitimate safety requirements if necessary for safe operation

Eligibility--Charges May not impose a surcharge on a person with a disability to cover the costs of measures that are required under the ADA (reasonable accommodations). Consequently, market rate is artificially depressed. However, States not precluded from paying more under ADA; only potentially limited by state law requiring subsidy to = charges imposed on private pay parents; this link can be eliminated in this special case

Special Needs Rates As of 9/30/05 29 States reported paying a higher reimbursement rate for children with special needs The following methods are used: Individual documentation; Percentage premium; Flat rate premium; and Highest available market rate.

Modification of Policies, Practices, and Procedures Required to make reasonable modifications to policies, practices, and procedures unless changes would fundamentally alter nature of the program If modification would fundamentally alter, must determine if reasonable alternative exists

Examples Changing snack time or nap time Eliminating no meds policy; med admin must be allowed when needed by a child with disability Doing blood prick testing Providing visual cues of transitions Assisting with positioning of leg brace Allowing specialists to work with a child during hours of program Providing insulin injection? OCR ruling finds it to be a fundamental alteration and not required. New unpublished federal district court decision from Maryland in accord.

Fundamental Alteration Very limited exception Requires more than discomfort or inconvenience Must “turn the program upside down”

Medication Administration/ Health Procedures Must administer if a reasonable accommodation (Alvarez v. Fountainhead, 55 F. Supp.2d.1048, N.D. Cal. 1999). Several States require specialized training in medication administration (CO, CT, DE, NY, UT, WV, WY) Settlements involving DOJ: inhaler, Epi-Pen; blood prick testing In CA: with conditions, insulin pumps, G-tube feeding, glucagon injections.

Effective Communication Ensure provision of effective communication Through provision of auxiliary aids and services Not required if it would result in a fundamental alteration or undue burden (significant difficulty or expense)

Examples Buying large print books Learning sign language with an infant or toddler Using picture cards

Removing Barriers to Physical Access Three situations Existing facilities Major alteration/renovations Newly constructed

Existing Facilities Buildings built or renovated before 1993 undertake “readily achievable” architectural modifications Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense

Examples Ramps: permanent or temporary Grab bars in restrooms Widening doorways Rearranging furniture

Alterations Alterations means changes that affect usability (remodeling, renovation) When made after 1992 shall be made to ensure that to maximum extent feasible altered portions are readily accessible and usable; effectively follow ADA accessibility guidelines but with some distinctions

New construction Child care facilities built or major renovations made after January 26, 1993 must comply with the Americans with Disabilities Act Accessibility Guidelines (ADAAG) Guidelines for children’s environments and play areas have been developed but are not yet DOJ regulations

Guidelines Extensive information on access guidelines is available from www.access-board.gov Info includes play area guide and FAQ’s Special wood chips have just been developed that cushion falls while being sufficiently firm to support a wheelchair. Info available from the Access Board.

Title II(a) Provisions Non-discrimination in services, programs and activities of governmental bodies. When contracting for services with a Title III agency, Title II agency must ensure by contract it is meeting its own Title II requirements (subsidy agencies are responsible for their grantees; need to be able to withdraw $ if finding of discrimination)

Distinctive Provisions “Qualified” individual with a disability: must meet essential eligibility requirements for receipt of services One who poses a direct threat is not qualified Public entity may offer separate or special programs specifically designed to meet needs of individuals with disabilities but individuals with disabilities cannot be denied access to standard program

Distinctive Provisions (cont.) While licensing standards are covered by Title II, the activities of the licensees themselves are not considered activities of the Title II agency Must provide “program accessibility” unless fundamental alteration or undue financial or administrative burden; consider possible alternatives Determination to be made by head of agency with written findings

Distinctive Provisions (cont.) Provide equally effective communication unless fundamental alteration or undue financial or administrative burden

Title II: Admin Requirements Must develop a grievance procedure Designate a compliance officer Conduct a self-evaluation Provide information on Title II requirements to the public Enforcement by by the Department of Justice (DOJ), Office of Civil Rights (OCR), Department of Health and Human Services (DHHS), the federal Department of Education (ED), or can file in federal district court.

Section 504 Covers federal government executive agencies Applies only to entities receiving federal funds (CACFP, CCDBG, Head Start, etc.) Similar protections to Title II of ADA No religious exemption States have no immunity from suit In 504 context, unlike ADA, FAPE is required

State Law Equivalents Many states have a law which is equivalent to the ADA These laws may be more protective than the ADA and/or provide more generous remedies Critically important to learn what your state civil rights laws contain; also important to learn state licensing law and med practices if this is an issue.

IDEA (Individuals with Disabilities Education Act) Federal entitlement to services Part B, deals with children 3-21 years of age Section 619 of Part B deals with 3-5 years of age Part C, infants and toddlers, 0 up to age 3

Part B Children ages 3-5 who meet eligibility requirements are guaranteed a free appropriate public education (contrast this with typically developing children—but this may be changing with UPK) Services must be provided in the least restrictive environment (LRE) which includes child care settings

Eligibility Mental retardation Hearing impairment including deafness Speech or language impairment Visual impairment including blindness Serious emotional disturbance Orthopedic impairment Autism

Eligibility continued Traumatic brain injury Other health impairment Specific learning disability Deaf blindness Multiple disabilities AND who needs special education.

Part C: Eligibility includes: Children with developmental delay Children with established risk conditions At state option, children at high risk of having substantial developmental disability due to a combination of risk factors

Natural Environments Includes a child’s home; and “Community settings in which children without disabilities participate”–such as child care It is presumed that services will be offered in natural environments because if they are not, a justification must be provided

Resources U.S Department of Justice: 800-514-0301 (VOICE); (800) 514-0383 (TTY); www.usdoj/gov/crt/ada/adahom1.htm Disability Rights Education and Defense Fund (DREDF) 510.644-2555; www.dredf.org National Early Childhood Technical Assistance Center (NECTAC); implementation of Part C of IDEA; www.nectac.org Child Care Law Center, 415.394.7144; www.childcarelaw.org The Access Board, 800.872.2253; www.access-board.gov Lekotek’s AblePlay Rating System, www.ableplay.org Boundless Playgrounds, www.boundlessplaygrounds.org. National Child Care Information Center, http://nccic.acf.hhs.gov