For Child Care Providers
A
Child Care Professional's Guide to the Americans with Disabilities
Act (ADA) and Child Care
What
is the Americans with Disabilities Act?
Alicia
is a four-year-old who desperately wants to play with children
her own age, and her mother, about to return to work, is eager
to find just the right child care for her. Born with Spina
Bifida, the second most common birth defect after Down syndrome,
Alicia doesn't run or jump or use the toilet on her own, but
she is able to enjoy social environments and can walk on her
own even though the doctors said she never would. She is bright,
capable child, more alike than different from her peers.
Alicia,
like thousands of children across the country, is a child
with a disability in need of child care. Caring for children
like Alicia in a regular child care setting is not new and,
in many cases, is not particularly different than caring for
other children in care. Since its inception, child care has
always focused on the needs of individual children. The Americans
with Disabilities Act (ADA) is a federal civil rights law.
The
Act states that people with disabilities are entitled to equal
rights in employment, state and local public services, and
public accommodations such as preschools, child care centers,
and family child care homes.
Whom
does the ADA protect? The ADA protects any child
or adult who:
- has
a physical or mental impairment which substantially
limits one or more major life activities such as speaking,
seeing, learning, walking, etc.;
-
has a history of this type of impairment (such as
a child with cancer now in remission);
- is
"regarded" as having the impairment ( such as a child
with facial scarring who has no limitations, but is
stigmatized);
- is
"associated with" any of the persons described above
(so that a child seeking admission to a child care
program cannot be denied simply because her brother
has tested positive for HIV or because her mother
uses a wheelchair).
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What
impact does the ADA have on child care programs?
As
of January 26, 1992, child care programs, both family child
care homes and child care centers, regardless of whether or
not they receive public subsidies, can no longer discriminate
on the basis of disability. Instead, the ADA demands a "new
way of thinking" in which the accommodations required by the
individual are weighed against the resources available to
the child care program to make any necessary accommodations.
This evaluation is to be done on a case-by-case basis.
What
exactly does the ADA require child care programs to do ?
The ADA requires that child care programs consider making
changes in three aspects of their programs.
First,
they must make reasonable modifications in their policies,
practices, and procedures in order to accommodate the individual
with a disability unless the modification would fundamentally
alter the nature of the program and there are no reasonable
alternatives.
Examples
of modifications might include:
- eliminating
prohibitions against serving children with disabilities
in admission policies;
-
eliminating per se restrictions which prevent children
with disabilities who are not toilet trained from
being considered for admission;
- providing
alternative foods at lunch and snack time for children
with food allergies; and /or
- making
a schedule change for a child who takes medication
and /or naps in the morning.
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Secondly,
child care programs are required to provide "auxiliary aids
and services" (which are services and devices designed to
ensure effective communication, such as interpreters, audiotapes,
large print materials, etc.) for those with disabilities affecting
hearing, vision, or speech, unless to do so would fundamentally
alter the nature of the program or would impose an undue burden
in the program and there are no alternative steps that can
be taken. An undue burden means significant difficulty or
expense.
Examples
of auxiliary aids and services might include:
- purchasing
large print books;
-
learning some sign language or hiring an interpreter;
and/or
- putting
a Braille label on the cubby of a child who is blind.
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Finally,
architectural barrier, which prevents access to services,
must be removed if removal is readily achievable means easily
accomplishable and able to be carried out without much difficulty
or expense. When barrier removal is not readily achievable,
programs must make the services available through alternative
methods, if the alternative methods are themselves readily
achievable.
What
types of personal assistance and devices must the child care
program staff provide?
The ADA makes it clear that child care programs are not required
to provide children with personal devices such as wheelchairs,
eyeglasses, or hearing aids. However, child care programs
are required to provide services such as assistance in eating,
toileting, or dressing when they are ordinarily provided to
other children in care.
What
safety considerations are taken into account in determining
whether a child will be admitted or maintained in a child
care program?
Child care programs may refuse to admit a child if they can
document that the child will pose a direct threat to the health
and safety of others in the child care setting. This is a
very narrow exception. Additionally, if the threat or risk
can be eliminated without fundamentally altering the nature
of the program, the child must be admitted or maintained in
the program.
Is
it legal to charged extra for the costs of caring for a child
with disabilities?
No. The ADA is very clear that child care programs may not
charge families with children with disabilities more that
other families are charged to cover any increased costs the
program incurs in making accommodations. To help defray any
additional cost, child care programs are allowed to spread
the cost to all families in the program.
What
guidelines can be used to determine if the program can accommodate
the individual needs of a child with a disability?
Generally, a child must be admitted into a program if the
child can be reasonably accommodated.
Such
circumstances would include situations where:
- the
child's condition does not pose a direct threat to
the health and safety of others in the child care
setting;
-
a child care program's policies, practices, and procedures
could be modified without fundamentally altering the
nature of the program;
- a
program could provide special equipment or services
to ensure effective communication without fundamentally
altering the nature of the program or presenting an
undue burden; and/or
- the
removal of architectural (physical) barriers is readily
achievable.
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What
can child care programs do if a family is concerned that they
are not complying with the ADA?
In addition to becoming familiar with the information about
the legal requirements of the ADA, the child care program
staff should listen to the concern, the dispute may be mediated
by a community mediation service.
If
the family hires a private attorney to bring an action against
the program or files a complaint with the Attorney General
to the Department Of Justice, the child care program should
seek the advice of an attorney.If a private action is filed,
the family can get a court order to stop the discrimination.
If the Attorney General brings the suit, monetary damages
and civil penalties may be sought.
Selected
Maryland Resources
The Arc of Maryland (formerly Association for Retarded
Citizens of Maryland)
49 Old Solomon's Island Road
Suite 205
Annapolis, MD 21401
Phone: (410) 974-6139
www.thearcmd.org
Office Of Child Care
311 West Saratoga Street
First Floor
Baltimore, MD 21202
Phone: (410) 767-7811
Maryland
Developmental Disabilities Council
One Market Center
300 West Lexington Street
Box 10
Baltimore, MD 21201
Phone: (410) 333-3688
www.md-council.org
Maryland
Infants & Toddlers Program
200 West Baltimore Street
4th Floor
Baltimore, MD 21202
(800) 535-0182 to obtain the telephone number for your local
area www.msde.state.md.us
Selected
National Resources
ADA Information Center
451 Hungerford Dr.
Suite 607
Rockville, MD 20850
Phone: (800) 949-4232 or (301) 217-0124
Child
Care Law Center
973 Market Street
Suite 550
San Francisco, CA 94103
Phone: (415) 495-5498
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