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Fast Click to Diabetes Legal Information

Federal & State Laws Protecting Children & Adults with Diabetes in:

Public Schools
Private Schools
Daycare Centers
Colleges & Universities
Workplace

Other Legal Information

Diabetes Discrimination & Legal Resources

Insurance Laws

Laws & Policies for Traveling with Diabetes

Diabetes Legal Headline News

Research & Ethics Laws


Understanding your Child's Rights in Day Care Centers

Section 504

Section 504 is a civil rights law that prohibits schools and child care facilities (as well as many other institu- tions and businesses) the receive federal funds from discriminating against people on the basis of disability, and this does include private schools.

Americans With Disabilities Act (ADA)

The Americans With Disabilities Act is also a civil rights law that protects students with disabilities, including those with diabetes.  This law protects students in both public and private school settings --  unless the school is run by a religious entity." Courts have found that children with diabetes are covered by BOTH the ADA and Section 504 laws.

Individuals With Disabilities Education Act (IDEA)

The IDEA is the federal law that funds special education services for children with disabilities.  According to Francine Ratner Kaufman, MD, head of the division of endocrinology and metabolism at Children's Hospital in Los Angeles, in order to qualify under the IDEA, "a student's diabetes must impair his or her ability to learn so that the student requires special education."

Children with diabetes can suffer from severe hyper- glycemia or hypglycemia which an impair cognitive ability and concentration. Some children with diabetes may benefit from simple accommodations like not having to take tests when glucose levels are abnormal, or being permitted to have a snack during long exams.

Chidlren with diabetes may suffer from problems with severe hyperglycemia and/or hypoglycemia.  This can affect cognitive ability. Your child may require simple accomodations may be required such as not having to take tests when glucose levels are abnormal, or being permitted to have a snack during long exams.

This law, does not cover all children with diabetes.  The courts have rule both in favor of, and against, specific students pursuing their rights under IDEA.


Have a question about diabetes discrimination?

Post your question to IOH's "Ask the Lawyer" Jeffrey I. Ehrlich; father of a child with type 1 diabetes, and an appellate attorney specializing in diabetes discrimination legal issues.


Diabetes and Day Care Discrimination Information and Resource Links from the American Diabetes Association

Diabetes and the Law

Care of Children with Diabetes in the School and Day Care Settings

Diabetes Management at School

Discrimination at School

Know You Rights!

What You Can Do

For Schools

Helping the Student with Diabetes Succeed: A Guide for School Personnel - Together with the National Diabetes Education Program (NDEP), the U.S. Department of Education, the American Academy of Pediatrics, the National Association of School Nurses, and other organizations, your American Diabetes Association has produced a new, free diabetes resource for schools.


Diabetes Care - Diabetes Care in the School and Day Care Setting


MyChildHas
Diabetes.com
- Your School and Your Rights. Children with diabetes sometimes face problems in obtaining the care they need in schools and day care centers. This site's information will help you understand the rights of children with diabetes and what you can do to make sure your child receives fair treatment.


What about diabetics in schools? Is student care adequate?  Ebony Magazine, March 2005

 

diabetes legal information education and daycare facility laws

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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Page Updated 03/02/2006