1 disclaimer: the following slides do not represent legal advice. due to law content changing, you...
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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
2
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
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