Child Care Centers and the ADA

Child Care Centers and the ADA

Future Reflections Spring 1999, Vol. 18 No. 1
(back)(contents)(next)
No Kidding Around for
Child Care Centers and the ADA

Reprinted from the Winter, 1998, issue of The
ADA Today, a publication of the Rocky Mountain ADA Technical Assistance
Center.
1.
Does the Americans with Disabilities Act (ADA) apply to child care centers?
Yes. Privately run child care centers—like other public
accommodations such as private schools, recreation centers, restaurants, hotels,
movie theaters, and banks—must comply with title III of the ADA. Child
care services provided by government agencies, such as Head Start, summer programs,
and extended school day programs, must comply with title II of the ADA. Both
titles apply to a child care center’s interactions with the children, parents,
guardians, and potential customers that it serves.
Child care center employment practices are
covered by other parts of the ADA. For more information about the ADA and employment
practices, please call the Equal Employment Opportunity Commission at (800)
669-4000(voice) or (800) 669-6820 (TTY).
2. Which child care centers are covered
by title III? Almost all child care providers, regardless of size or number
of employees, must comply with title III of the ADA. Even small, home-based
centers that may not have to follow some state laws are covered by title III.
The exception is child care centers that are actually run by religious entities
such as churches, mosques, or synagogues.
However, private child care centers that are
operating on the premises of a religious organization are generally not exempt
from title III. Where such areas are leased by a child care program not controlled
or operated by the religious organization title III applies to the child care
program but not the religious organization. For example, if a private child
care program is operated out of a church, pays rent to the church, and has no
other connection to the church, the program has to comply with title III but
the church does not.
3. What are the basic requirements of title
III? The ADA requires that child care providers not discriminate against
persons with disabilities on the basis of disability; that is, that they provide
children and parents with disabilities with an equal opportunity to participate
in the child care center’s programs and services. Specifically:

Centers cannot exclude children with disabilities
from their programs unless their presence would pose a direct threat to the
health or safety of others or require a fundamental alteration of the program.
Centers have to make reasonable modifications to their policies
and practices to integrate children, parents, and guardians with disabilities
into their programs unless doing so would constitute a fundamental alteration.
Centers must provide appropriate auxiliary aids and services
needed for effective communication with children or adults with disabilities,
when doing so would not constitute an undue burden.
Centers must generally make their facilities accessible to
persons with disabilities. Existing facilities are subject to the readily
achievable standard for barrier removal, while newly constructed facilities
and any altered portions of existing facilities must be fully accessible.

4. How do I decide whether a child with a
disability belongs in my program? Child care centers cannot just assume
that a child’s disabilities are too severe for the child to be integrated
successfully into the center’s child care program. The center must make
an individualized assessment about whether it can meet the particular needs
of the child without fundamentally altering its program. In making this assessment,
the caregiver must not react to unfounded preconceptions or stereotypes about
what children with disabilities can or cannot do, or how much assistance they
may require. Instead, the caregiver should talk to the parents or guardians
and any other professionals (such as educators or health care professionals)
who work with the child in other contexts. Providers are often surprised at
how simple it is to include children with disabilities in their mainstream programs.
Child care centers that are accepting new
children are not required to accept children who would pose a direct threat
(see question 8) or whose presence or necessary care would fundamentally alter
the nature of the child care program.
5. My insurance company says it will raise
our rates if we accept children with disabilities. Do I still have to admit
them into my program? Yes. Higher insurance rates are not a valid
reason for excluding children with disabilities from a child care program. The
extra cost should be treated as overhead and divided equally among all paying
customers.
6. Our center is full and we have a waiting
list. Do we have to accept children with disabilities ahead of others? No.
Title III does not require providers to take children with disabilities out
of turn.
7. Our center specializes in “group
child care.” Can we reject a child just because she needs individualized
attention? No. Most children will need individualized attention occasionally.
If a child who needs one-to-one attention due to a disability can be integrated
without fundamentally altering a child care program, the child cannot be excluded
solely because the child needs one-to-one care.
For instance, if a child with Down Syndrome
and significant mental retardation applies for admission and needs one-to-one
care to benefit from a child care program, and a personal assistant will be
provided at no cost to the child care center (usually by the parents or through
a government program), the child cannot be excluded from the program solely
because of the need for one-to-one care. Any modifications necessary to integrate
such a child must be made if they are reasonable and would not fundamentally
alter the program. This is not to suggest that all children with Down Syndrome
need one-to-one care or must be accompanied by a personal assistant in order
to be successfully integrated into a mainstream child care program. As in other
cases, an individualized assessment is required. But the ADA generally does
not require centers to hire additional staff or provide constant one-to-one
supervision of a particular child with a disability.
8. What about children whose presence is
dangerous to others? Do we have to take them, too? No. Children who
pose a direct threat—a substantial risk of serious harm to the health and
safety of others—do not have to be admitted into a program. The determination
that a child poses a direct threat may not be based on generalizations or stereotypes
about a particular disability; it must be based on an individualized assessment
that considers the particular activity and the actual abilities and disabilities
of the individual.
To find out whether a child has a medical
condition that poses a significant health threat to others, child care providers
may ask all applicants whether a child has any diseases that are communicable
through the types of incident contact expected to occur in child care settings.
Providers may also inquire about specific conditions, such as active infectious
tuberculosis, that in fact poses a direct threat.
9. One of the children in my center hits
and bites other children. His parents are now saying that I can’t expel
him because his bad behavior is due to a disability. What can I do? The
first thing the provider should do is try to work with the parents to see if
there are reasonable ways of curbing the child’s bad behavior. He may need
extra naps, “time out,” or changes in his diet or medication. If reasonable
efforts have been made and the child continues to bite and hit children or staff,
he may be expelled from the program even if he has a disability. The ADA does
not require providers to take any action that would pose a direct threat—a
substantial risk of serious harm—to the health or safety of others. Centers
should not make assumptions, however, about how a child with a disability is
likely to behave based on their past experiences with other children with disabilities.
Each situation must be considered individually.
10. We have a “no pets” policy.
Do I have to allow a child with a disability to bring a service animal? Yes.
A service animal is not a pet. The ADA requires you to modify your “no
pets” policy to allow the use of a service animal by a person with a disability.
This does not mean that you must abandon your “no pets” policy altogether,
but simply that you must make an exception to your general rule for service
animals.
(back)(contents)(next)