THE IMPACT OF THE ADA
All child care providers, regardless of their size or number of employees, must comply with the American Disabilities Act, or ADA. Even small, home-based centers that may not have to follow some State laws are covered by the ADA’s Title III section. (Note: An exception exists for child care centers that are operated by religious entities such as churches, mosques, or synagogues.)
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 an equal opportunity to participate in the child care center's programs and services.
Specifically, centers cannot exclude children (or parents) with disabilities from their programs unless their presence would pose a direct threat to the health or safety of others or it would require a fundamental change of their existing program. If neither of these two factors is present, daycare centers – even in-home ones, need to make reasonable modifications to their practices to integrate children with disabilities.
Centers do have the opportunity to receive a tax benefit for expenses relating to providing accommodations for disabled children or their disabled parents. Child care centers may contact the Department of Justice or their tax preparer for more information about this deduction.
TROUBLE DOWN THE ROAD
If trouble arises after a child has been enrolled, it is recommended that parents and providers work together to identify and resolve any problems that may be creating the strong negative behavior. If all efforts have been made and the child continues to create a safety threat for themselves, other children, or childcare staff, they may be expelled from the program even if they have a disability.
Most childcare centers do understand that all children (both disabled and not disabled) will need individualized attention occasionally, and if a child who needs one-to-one attention due to a disability can be integrated without fundamentally altering the established program, they cannot be excluded solely because the child needs occasional one-to-one care. That being said, it should also be noted that 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.
Working though accommodation difficulties with a child care provider should be handled thoughtfully. Children experience the highest standard of care when childcare staff are interested and value you and your child.
Consider approaching concerns as a learning opportunity for the childcare provider. Document your concerns, but be honest and sincere in your efforts to work though them. While the relationship you have with the provider is a professional relationship, it’s still a relationship with another person, and attitudes will always come though in their work.
Sometimes, finding a new provider that may offer a better fit may be the best long-term solution. If you find that you need to go this route, consider following-up after your childcare change with the center’s administrator, the Better Business Bureau, or the Department of Justice about any concerns.
Remember that if things are not going well, taking the approach with the provider of ‘this is a teachable moment’ may improve things for the next family coming in the door.
NO ASSUMPTIONS ALLOWED
Child care centers cannot just presume that a child's disabilities are too severe for them to be integrated successfully into the center’s programs. Before enrollment, the center must make an assessment about whether it can meet the particular needs of the child without fundamentally altering its program.
The daycare provider should talk to the parents, guardians, and any other professionals (such as educators or health care professionals) who work with the child in other contexts when making this decision.
Providers are often surprised at how simple it is to include children with disabilities in their mainstream programs.
If after doing an assessment the childcare provider determines that the child poses ‘a substantial risk of serious harm to the health and safety of others’, they do not have to be admitted into a childcare program.
If you disagree with their assessment, ask questions and seek out solutions. Ask them to reconsider. Provide contact information for someone who could speak with the center about their experience in caring for your child. If they do not change their mind, it may be best to seek services elsewhere. After all, the priority should be to have your child in the hands of someone you trust and who you know cares for your child as much as you do. Sometimes, having genuine caring is not something that can be forced by a law or anything else.
The Department of Justice operates an ADA Information Line. Information Specialists are available to answer general and technical questions at 800-514-0301.
The ADA Home Page, which is updated frequently, contains the Department of Justice's regulations and additional information.
Through a grant from the Department of Justice, The Arc published All Kids Count: Child Care and the ADA, which addresses the ADA's obligations of child care providers.
Copies are available for a nominal fee by calling The Arc's National Headquarters in Arlington, Texas at 800-433-5255 or upon request by your local library.
For specific questions about your circumstances regarding this topic, contact your Regional Center for Children & Youth with Special Health Care Needs. The Centers are staffed by specialists who can help get answers, find services and connect you to community resources. Their services are free, unbiased and private.
Please note: This information was compiled by a parent volunteer from public sources, and is not legal advice.