Americans with Disability Act-childcare

A Parent'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 she can walk on her own, even though the doctors said she never would. She is a 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 childcare. Caring for children like Alicia in a regular childcare setting is not new and, in many cases, is not particularly different than caring for other children in care. Since its inception, childcare 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).

What impact does the ADA have on childcare programs?
As of January 26, 1992, childcare programs, both family childcare 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 childcare 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 childcare 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;

making a schedule change for a child who takes medication and/or naps in the morning.

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.

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 childcare program staff provide?
The ADA makes it clear that childcare programs are not required to provide children with personal devices such as wheelchairs, eyeglasses, or hearing aids. However, childcare 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 childcare program?
Childcare 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 childcare 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 be charged extra for the costs of caring for a child with disabilities?
No. The ADA is very clear that childcare 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, childcare programs are allowed to spread the cost to all families in the program.

How can I help a childcare program meet my child's needs?

share with the program all you can about what you think is important for the child care staff to know in caring for your child;

maintain communication with your provider throughout the time your child is in care;

facilitate communication between your child are provider an any other professionals who are helping your child (your written consent will be necessary);

let the child care program know about any community agencies or state or national organizations which provide resources and information regarding the type of disability or disabilities your child has; and

assist the program in identifying any public or private subsidies, grants, or loans available to support their efforts.

If I feel that a childcare program is not complying with the requirements of the ADA, what can I do?
First, let the childcare program know what your concerns are, and provide them with information about the legal requirements of the ADA. If you are still unable to get satisfaction, you might seek to mediate the dispute using a community meditation service. Alternatively, you have two options: You may hire a private attorney to bring an action against the program, or you can file a complaint with the Attorney General at the U.S. Department of Justice.

If you file a private action, you are entitled to a court order to stop the discrimination. If the Attorney General brings the suit, he/she may seek monetary damages as well as civil penalties ($50,000 for the first violation; $100,000 for any subsequent violation).

Selected National Resources

ADA Information Center
451 Hungerford Dr.
Suite 607
Rockville, MD 20850
Phone: 1 (800) 949-4232 or (301) 217-0124
Child Care Law Center
973 Market Street
Suite 550
San Francisco, CA 94103
Phone: (415) 495-5498