1. 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.

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

3. 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

4. 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

5. 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

6. 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)

7. 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.

8. 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

9. 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

10. 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)

11. 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

12. 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

13. 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

14. 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

15. 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!

16. 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

17. 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

18. 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.

19. 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

20. 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.

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

22. 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.

23. 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)

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

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

26. 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

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

28. 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

29. 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

30. Guidelines
Extensive information on access guidelines is available from
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.

31. 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)

32. 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

33. 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

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

35. 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.

36. 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

37. 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.

38. 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

39. 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

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

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

42. 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

43. 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

44. Resources
U.S Department of Justice: (VOICE); (800) (TTY);
Disability Rights Education and Defense Fund (DREDF) ;
National Early Childhood Technical Assistance Center (NECTAC); implementation of Part C of IDEA;
Child Care Law Center, ;
The Access Board, ;
Lekotek’s AblePlay Rating System,
Boundless Playgrounds,
National Child Care Information Center,