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Commonly Asked Questions About Child Care Centers and
the Americans with Disabilities Act (ADA)
Do day care centers have to admit children with diabetes into their program? Do they have to test blood glucose levels?
According to the U.S. Department of Justice, yes.
A: Generally, yes. Children with diabetes can usually be integrated
into a child care program without fundamentally altering it, so they should not
be excluded from the program on the basis of their diabetes. Providers should
obtain written authorization from the child's parents or guardians and physician
and follow their directions for simple diabetes-related care. In most instances,
they will authorize the provider to monitor the child's blood blood
glucose levels per the instructions. The careiver is also required to
take whatever simple actions have been recommended by the child's parents
or guardians and doctor, such as giving the child some fruit juice if the
child's blood glucose level is low. The child's parents or guardians are
responsible for providing all appropriate testing equipment, training, and
special food necessary for the child.
The Department of Justice's settlement agreements with KinderCare and La
Petite Academy address this issue and others (see our "Education News Headline Archives" section).
Coverage
Does the Americans with Disabilities Act 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.
A child care center's employment practices are covered by other parts of the
ADA and are not
addressed here. For more information about the ADA and employment practices, please call the
Equal Employment Opportunity Commission (see question 30).
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. Activities controlled by
religious organizations are not covered by title III.
Private child care centers that are operating on the premises of a religious
organization, however, 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.
General Information for Child Care Centers & Providers
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 alterationof 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.
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.
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.
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.
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 though 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.
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 the effects of 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.
In order 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 incidental contact expected to occur in child care settings. Providers
may also inquire about specific conditions, such as active infectious
tuberculosis, that in fact pose a direct threat.
Can I charge the parents for special services provided to a child with a
disability, provided that the charges are reasonable?
It depends. If the service is required by the ADA, you cannot impose a surcharge for it. It
is only if you go beyond what is required by law that you can charge for those
services. For instance, if a child requires complicated medical procedures that
can only be done by licensed medical personnel, and the center does not
normally have such personnel on staff, the center would not be required to
provide the medical services under the ADA.
If the center chooses to go beyond its legal obligation and provide the
services, it may charge the parents or guardians accordingly. On the other
hand, if a center is asked to do simple procedures that are required by the ADA-- such as
finger-prick blood glucose tests for children with diabetes -- it cannot charge the parents extra for those services. To help offset the
costs of actions or services that are required by the ADA, including but not
limited to architectural barrier removal, providing sign language interpreters,
or purchasing adaptive equipment, some tax credits and deductions may be
available (see question 24).
Personal Services & Specific Disabilities - Including Diabetes
Our center has a policy that we will not give medication to any child. Can
I refuse to give medication to a child with a disability?
No. In some circumstances, it may be necessary to give medication to a child
with a disability in order to make a program accessible to that child. While
some state laws may differ, generally speaking, as long as reasonable care is
used in following the doctors' and parents' or guardians written instructions
about administering medication, centers should not be held liable for any
resulting problems. Providers, parents, and guardians are urged to consult
professionals in their state whenever liability questions arise.
What about children who have severe, sometimes life-threatening allergies
to bee stings or certain foods? Do we have to take them?
Generally, yes. Children cannot be excluded on the sole basis that they have
been identified as having severe allergies to bee stings or certain foods. A
center needs to be prepared to take appropriate steps in the event of an
allergic reaction, such as administering a medicine called "epinephrine"
that will be provided in advance by the child's parents or guardians.
The Department of Justice's settlement agreement with La Petite Academy
addresses this issue and others.
What about children with diabetes? Do we have to admit them to our program?
If we do, do we have to test their blood sugar levels?
Generally, yes. Children with diabetes can usually be integrated into a
child care program without fundamentally altering it, so they should not be
excluded from the program on the basis of their diabetes. Providers should
obtain written authorization from the child's parents or guardians and
physician and follow their directions for simple diabetes-related care. In most
instances, they will authorize the provider to monitor the child's blood sugar
-- or "blood glucose" -- levels before lunch and whenever the child
appears to be having certain easy-to-recognize symptoms of a low blood sugar
incident. While the process may seem uncomfortable or even frightening to those
unfamiliar with it, monitoring a child's blood sugar is easy to do with minimal
training and takes only a minute or two. Once the caregiver has the blood sugar
level, he or she must take whatever simple actions have been recommended by the
child's parents or guardians and doctor, such as giving the child some fruit
juice if the child's blood sugar level is low. The child's parents or guardians
are responsible for providing all appropriate testing equipment, training, and
special food necessary for the child.
The Department of Justice's settlement agreements with KinderCare and La
Petite Academy address this issue and others (see question 26).
The Department of Justice's
Enforcement Efforts
What is the Department of Justice's enforcement philosophy regarding title
III of the ADA?
Whenever the Department receives a complaint or is asked to join an on-going
lawsuit, it first investigates the allegations and tries to resolve them
through informal or formal settlements. The vast majority of complaints are
resolved voluntarily through these efforts. If voluntary compliance is not
forthcoming, the Department may have to litigate and seek injunctive relief,
damages for aggrieved individuals, and civil penalties.
Has the United Statesentered into any settlement agreements involving child care centers refusing
care for children with diabetes?
In 1996, the Department of Justice entered into a settlement
agreement with KinderCare Learning Centers -- the largest chain of child care
centers in the country -- under which KinderCare agreed to provide appropriate
care for children with diabetes, including providing finger-prick blood glucose
tests. In 1997, La Petite Academy -- the second-largest chain -- agreed to
follow the same procedures.
In its 1997 settlement agreement with the Department of Justice, La Petite
Academy also agreed to keep epinephrine on hand to administer to children who
have severe and possibly life-threatening allergy attacks due to exposure to
certain foods or bee stings and to make changes to some of its programs so that
children with cerebral palsy can participate.
The settlement agreements and their attachments, including a waiver of
liability form and parent and physician authorization form, can be obtained by
calling the Department's ADA Information Line or through the Internet (see
question 30). Child care centers and parents or guardians should consult a
lawyer in their home state to determine whether any changes need to be made
before the documents are used.
Does the United States ever participate in lawsuits brought by private citizens?
Yes. The Department sometimes participates in private suits either by
intervention or as amicus curiae -- "friend of the court." One
suit in which the United
States participated was brought by a
disability rights group against KinderCare Learning Centers. The United States supported the plaintiff's position that KinderCare had to make its program accessible
to a boy with multiple disabilities including mental retardation. The
litigation resulted in KinderCare's agreement to develop a model policy to
allow the child to attend one of its centers with a state-funded personal
assistant.
Source
U.S. Department of Justice, Civil Rights Division
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