1Disclaimer: The following slides do not represent legal advice. Due to law content changing, you should consult with a lawyer if you have specific legal questions or concernsAppreciation to All of Us Together for use of design; this is not an All of Us Together document..

Disability Rights Disability Rights in the Context of Child Carein the Context of Child Care

Presented by:

Abby J. Cohen

NCCIC

August 4, 2005

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BackgroundBackground

History of discrimination Attitudes toward people with disabilities Law both leads and follows Recognizing benefits of inclusion

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Distinguishing Types of LawsDistinguishing Types of Laws

Enactment of laws to protect civil rights Concern with discrimination by public

accommodations Concern with discrimination by publicly

funded entities

Enactment of laws to provide services by entitlement

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Primary Federal LawsPrimary Federal Laws

Civil rights laws Section 504 of the Rehabilitation Act of

1973–applies to federally funded programs

Americans with Disabilities Act (ADA) 1990–providing for equal rights to public accommodations

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Primary Federal Laws Primary Federal Laws (cont.)(cont.)

Entitlements to services Individuals with Disabilities Education Act

of 1975 (IDEA)–provides specified services by right to eligible persons with disabilities; reauthorized in 2004; new law except for personnel provisions became effective July 1, 2005

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Structure of the ADAStructure of the ADA

Prohibits discrimination in or by: Employment (Title I) State and local governments (Title II) Public accommodations (Title III) Public transportation [Title II(b) and

Title III(b)] Telecommunications (Title IV)

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When Are You Required When Are You Required to Admit a Child with a Disability?to Admit a Child with a Disability?

Scenario: A child with a disability requests

enrollment into your child care program. Evaluate the individual needs of the

child with a disability. Follow the evaluation process to

determine your rights and responsibilities.

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Does the child’s condition pose a

direct threat?

Renovated area and new facilities (after 1/26/96)

must be fully compliant with ADAAG regulations

Is this a new facility or are major

renovations being made?

Identify ways to reasonably

accommodate the needs of the child.

This child cannot be reasonably accommodated at this point. Reassess when

direct threat can be eliminated

This child cannot be reasonably accommodated at this point. Reassess when

direct threat can be eliminated

Can the direct threat be eliminated through reasonable

modifications?

Yes No

Do you need to reasonably

modify policies, practices, and procedures to accommodate

the child?

Do you need to remove any architectural barriers from an

already existing facility to accommodate the child?

Will providing this impose an undue

burden or fundamentally alter the

nature of your program?

Will changing policies and

practices fundamentally alter the nature

of your program?

Will removing barriers be

readily achievable?

The child can be reasonably

accommodated. Admit the child into

your program.

The child can be reasonably

accommodated. Admit the child into

your program.

This child does not need to be accepted by your program now. If reasonably possible, set long-term goals to enable

your program to meet similar needs in the future.

This child does not need to be accepted by your program now. If reasonably possible, set long-term goals to enable

your program to meet similar needs in the future.

No

Yes

No

Yes

No

Yes

No

No Yes

Yes

Yes

No Yes

No

Does the child need auxiliary aids and services to ensure

effective communication?

Are there any reasonable

alternatives to accommodate the

child?

YesYes

No

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Public AccommodationsPublic Accommodations No public funding required; just must be

open to the public Programs operated by religious

organizations exempted Child care centers and family child care

homes covered U.S. Territories must comply; Tribes

cannot be sued by individuals but can be sued by the Federal Government

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ADA Definition of DisabilityADA Definition of Disability

A physical or mental impairment which substantially limits one or more major life activities

When determining whether a “disability” is present, mitigating or corrective measures are taken into account (medicine, prosthesis)

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Major Life ActivitiesMajor Life Activities

Federal law defines in regs to include: Walking Seeing Hearing Learning Taking care of oneself Performing manual tasks: of central

importance to daily life

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ADA Protects Several GroupsADA Protects Several Groups Individuals with disabilities as defined by

ADA Individuals with a record of having a

disability Individuals who are regarded as having a

disability (split in circuits as to whether or not reasonable accommodations may still be required)

Individuals or entities associated with a person with a disability

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Direct Threat: A Narrow Direct Threat: A Narrow ExceptionException

Rarely, person with disabilities posing a significant risk to others may be excluded if risk can’t be eliminated by modifications

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What Must Providers Do? What Must Providers Do?

Develop eligibility/admissions criteria that do not screen out or tend to screen out persons with disabilities

Make reasonable modifications to policies, practices and procedures

Provide for equally effective communication Comply with physical access requirements

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Eligibility / AdmissionsEligibility / Admissions

Must eliminate all eligibility criteria which explicitly state children with disabilities not included

Must eliminate admissions criteria such as “toilet trained” unless made clear doesn’t apply to children with disabilities

May impose legitimate safety requirements if necessary for safe operation

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Modification of Policies, Modification of Policies, Practices, and ProceduresPractices, and Procedures

Required to make reasonable modificationsto policies, practices, and procedures unless

changes would fundamentally alter nature of the program

If modification would fundamentally alter, must determine if reasonable alternative exists

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ExamplesExamples Changing snack time or nap time Eliminating no meds policy Doing blood prick testing Providing visual cues of transitions Assisting with positioning of leg brace Allowing specialists to work with a child during hours of

program Providing insulin injection? Recent OCR ruling finds it to

be a fundamental alteration and not required; DREDF has filed a complaint recently with California Department of Ed on issue but deals with school setting; Cal. Child care now allowing glucagon injection

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Fundamental AlterationFundamental Alteration

Very limited exception Requires more than discomfort or

inconvenience Must “turn the program upside down”

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Effective CommunicationEffective Communication

Ensure provision of effective communication

Through provision of auxiliary aids and services

Not required if it would result in a fundamental alteration or undue burden (significant difficulty or expense)

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ExamplesExamples

Buying large print books Learning sign language with an infant

or toddler Using picture cards

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Removing Barriers to Physical Removing Barriers to Physical AccessAccess

Three situations Existing facilities Major alteration/renovations Newly constructed

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Existing FacilitiesExisting Facilities

Buildings built or renovated before 1993 undertake “readily achievable” architectural modifications

Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense

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ExamplesExamples

Ramps: permanent or temporary Grab bars in restrooms Widening doorways Rearranging furniture

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AlterationsAlterations

Alterations means changes that affect usability (remodeling, renovation)

When made after 1992 shall be made to ensure that to maximum extent feasible altered portions are readily accessible and usable; effectively follow ADA accessibility guidelines but with some distinctions

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New constructionNew construction

Child care facilities built or major renovations made after January 26, 1993 must comply with the Americans with Disabilities Act Accessibility Guidelines (ADAAG)

Guidelines for children’s environments and play areas have been developed but are not yet DOJ regulations

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GuidelinesGuidelines

Extensive information on access guidelines is available from www.access-board.gov

Info includes play area guide and FAQ’s Special wood chips have just been

developed that cushion falls while being sufficiently firm to support a wheelchair. Info available from the Access Board.

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Title II(a) ProvisionsTitle II(a) Provisions

Non-discrimination in services, programs and activities of state and local governments

When contracting for services with a Title III agency, Title II agency must ensure by contract it is meeting its own Title II requirements

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Distinctive ProvisionsDistinctive Provisions

“Qualified” individual with a disability: must meet essential eligibility requirements for receipt of services

One who poses a direct threat is not qualified Public entity may offer separate or special

programs specifically designed to meet needs of individuals with disabilities but cannot be denied access to standard program

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Distinctive Provisions Distinctive Provisions (cont.)(cont.)

While licensing standards are covered by Title II, the activities of the licensees themselves are not considered activities of the Title II agency

Must provide “program accessibility” unless fundamental alteration or undue financial or administrative burden; consider possible alternatives

Determination to be made by head of agency with written findings

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Distinctive Provisions Distinctive Provisions (cont.)(cont.)

Provide equally effective communication unless fundamental alteration or undue financial or administrative burden

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Title II: Admin RequirementsTitle II: Admin Requirements Must develop a grievance procedure Designate a compliance officer Conduct a self-evaluation Provide information on Title II requirements to

the public Enforcement by by the Department of Justice

(DOJ), Office of Civil Rights (OCR), Department of Health and Human Services (DHHS), the federal Department of Education (ED), or can file in federal district court.

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Section 504Section 504 Covers federal government executive

agencies Applies only to entities receiving federal

funds (CACFP, CCDBG, Head Start, etc.) Similar protections to Title II of ADA No religious exemption States have no immunity from suit In the educational context includes FAPE

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IDEAIDEA

Entitlement to services once one meets eligibility conditions

Early intervention (Part C) and special education (Part B) guarantees

Reauthorized in 2004; proposed regs for Part B are now out for comment

Comments due by September 5

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IDEA structureIDEA structure

Part B deals with children 3-21 Section 619 of Part B deals with 3-5

years of age Part C, infants and toddlers, 0 up to

age 3

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Part B eligibilityPart B eligibility Identified as having: autism, deaf-blindness,

deafness, emotional disturbance, hearing impairment, mental retardation, multiple disabilities, orthopedic impairment, other health impairment, specific learning disability, speech or language impairment, traumatic brain injury, visual impairment

Ages 3-9, optional developmental delay category

Needs special education and related services

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FAPEFAPE Part B calls for a free appropriate public

education (FAPE)--special education and related services provided at public expense under public supervision without charge

Applies to preschool (contrast this guarantee with typically developing children)

To be provided in conformity with the individualized education plan (IEP); preschooler’s IEP to state how the disability affects the child’s participation in appropriate activities

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Least Restrictive EnvironmentLeast Restrictive Environment LRE is the concept that is bringing the fields

of special education and early childhood together: to maximum extent appropriate educate with children who are nondisabled

Applies to all preschoolers entitled to FAPE; requirement of a continuum of alternative placements, including integrated placement options such as community based settings with typically developing peers . . . (see LaGrange case)

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Part CPart CEligibility includes: Children with developmental delay Children with established risk

conditions At state option children at high risk of

having substantial developmental disability due to a combination of risk factors

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Natural EnvironmentsNatural Environments

Includes a child’s home; and “Community settings in which children

without disabilities participate”–such as child care

It is presumed that services will be offered in natural environments because if they are not, a justification must be provided

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Reauthorization changesReauthorization changes

Can’t review all changes; a few of possible interest; go to www.ideapractices.org for more information on law and proposed regs

Changes how to determine if there is a specific learning disability

While early intervening option is for k-3 only, opens up who is eligible for services discussion

Possibility of maintaining IFSP through kindergarten age rather than ending at age 3

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Trends and issues to discussTrends and issues to discuss Growth in public preschool and universal

preschool; Professional development; growth of dual

licensure (ece/ecse);cross training on laws and professional knowledge

Continuing differences between systems as impediment to inclusion (e.g., health related services)

Revisions to child care licensing to promote inclusion and eliminate discrimination

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ResourcesResources U.S Department of Justice: 800-514-0301 (VOICE);

(800) 514-0383 (TTY); www.usdoj/gov/crt/ada/adahom1.htm Disability Rights Education and Defense Fund (DREDF)

510.644-2555; www.dredf.org Child Care Law Center, 415.394.7144; www.childcarelaw.org The Access Board, 800.872.2253; www.access-board.gov National Child Care Information Center, http://nccic.org NECTAC, www.nectac.org CEC/DEC, www. ideapractices.org