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).

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.

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 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.

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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