Disability Rights in the Context of Child Care

1. Disability Rights in the Context of Child Care Presented by: Abby J. Cohen NCCIC August 4, 2005 Disclaimer: 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 concerns Appreciation to All of Us Together for use of design; this is not an All of Us Together document..

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

3. Distinguishing 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

4. Primary 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

5. Primary Federal Laws (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

6. Structure 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)

7. When Are You Required 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.

8. No Yes Does the child’s condition pose a direct threat? 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 Identify ways to reasonably accommodate the needs of the child. Is this a new facility or are major renovations being made? Renovated area and new facilities (after 1/26/96) must be fully compliant with ADAAG regulations Yes Yes No Do you need to reasonably modify policies, practices, and procedures to accommodate the child? Does the child need auxiliary aids and services to ensure effective communication? Do you need to remove any architectural barriers from an already existing facility to accommodate the child? No No The child can be reasonably accommodated. Admit the child into your program. Yes Yes Will removing barriers be readily achievable? Yes 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? No No Yes Yes No Yes Are there any reasonable alternatives to accommodate the child? 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

9. Public 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

10. ADA 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)

11. Major 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

12. ADA 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 associatedwith a person with a disability

13. Direct Threat: A Narrow Exception • Rarely, person with disabilities posing a significant risk to others may be excluded if risk can’t be eliminated by modifications

14. 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

15. Eligibility / 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

16. Modification of Policies, Practices, 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

17. Examples • 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

18. Fundamental Alteration • Very limited exception • Requires more than discomfort or inconvenience • Must “turn the program upside down”

19. Effective 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)

20. Examples • Buying large print books • Learning sign language with an infant or toddler • Using picture cards

21. Removing Barriers to Physical Access • Three situations • Existing facilities • Major alteration/renovations • Newly constructed

22. Existing 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

23. Examples • Ramps: permanent or temporary • Grab bars in restrooms • Widening doorways • Rearranging furniture

24. Alterations • 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

25. New 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

26. Guidelines • 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.

27. Title 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

28. Distinctive 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

29. Distinctive Provisions (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 administrativeburden; consider possible alternatives • Determination to be made by head of agency with written findings

30. Distinctive Provisions (cont.) • Provide equally effective communication unless fundamental alteration or undue financial or administrative burden

31. Title 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.

32. Section 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

33. IDEA • 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

34. IDEA 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

35. Part 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

36. FAPE • 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

37. Least 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)

38. Part C Eligibility 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

39. Natural 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

40. Reauthorization 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

41. Trends 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

42. Resources • 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