Parents of Children with Disabilities
As a parent of a child with disabilities, you are protected under Title III of the ADA.
While many parents struggle to find affordable, quality child care, the parents of a child with a disability struggle to find any program that will accept their child. The 1990 passage of the Americans with Disabilities Act (ADA) opened a new and exciting world for families and children with disabilities. Prior to ADA passage, care for many children with disabilities was limited to family, friends, or special disability-only child care centers. Now child care centers and home daycare providers are required to open their doors wide to welcome all children.
How does Title III of the ADA protect my child with disabilities?
Under Title III, the ADA prohibits a public accommodation, such as a child care center, from discriminating against an individual on the basis of disability by denying them the right of full and equal access to Childcare its goods and services. Childcare centers must comply with Title III of the ADA regardless of their size or number of employees. Even small, home-based centers that may not have to follow some state laws are covered by Title III.
Under Title III, “disability” can include any disorder, disease, or impairment ranging from diabetes, to allergies, physical/mobility or developmental/learning challenges, as well as epilepsy, cerebral palsy, asthma and HIV/AIDS, among others.
What rights do parents of children with disabilities have under Title III?
Children with disabilities are automatically protected by the ADA. Parents of children with disabilities are protected if they are discriminated against because of their association with a child with a disability or if they have a disability. If a child care center does not meet the Title III requirements, parents of children with disabilities and people with disabilities can file a formal complaint. A civil action case may be brought against the center in federal court and the Department of Justice can implement a fine of up to $50,000 for a first violation.
Childcare Centers and Title III of the ADA
What does Title III require of child care centers?
- Child care centers must take necessary steps to ensure children with disabilities are integrated into the usual routine at the center and its programs to the greatest extent possible in accordance with the ADA.
- Child care centers cannot assume a child’s disability is too severe for the child to be accepted and integrated into its programs. Assessments must be made on an individual basis to determine if they can meet the particular needs of the child without fundamentally altering their programs.
- Child care centers may not charge the family of a child with a disability a higher tuition if costs associated with ADA compliance are incurred. Costs associated with ADA compliance are considered general operating costs and can be shared by all families. Centers can also utilize tax credits and deductions to offset ADA compliance costs. Child care centers also cannot exclude a child with a disability based on higher insurance rates.
- Child care centers have an ongoing obligation to make their facilities accessible to people with disabilities and to remove barriers to accessibility – whether or not the center currently has children with disabilities enrolled in its programs.
Commonly Asked Questions About Child Care Centers and the Americans with Disabilities Acts (ADA):
How do I make my child care center’s building, playground, and parking lot accessible to people with disabilities?
Even if you do not have any children with disabilities in your program now, you have an ongoing obligation to remove existing barriers to access for people with disabilities. Existing privately-run child care centers must remove any architectural barriers that limit the participation of children with disabilities (or parents, guardians, or prospective customers with disabilities) if removing the barriers is readily achievable, that is, if the barrier removal can be easily accomplished and can be carried out without much difficulty or expense.
Installing offset hinges to widen a door opening, installing grab bars in toilet stalls, or rearranging tables, chairs, and other furniture are all examples of barrier removal that might be undertaken to allow a child in a wheelchair to participate in a child care program.
Centers run by state or local government agencies must ensure that their programs are accessible when viewed in their entirety unless making changes imposes an undue burden; these changes will sometimes include changes to the facilities.
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.
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-on-one attention due to a disability can be integrated without fundamentally altering a childcare program, the child cannot be excluded solely because the child needs one-on-one care.
We have a “no pets” policy. Do I have to allow a child with a disability to bring a service animal, such as a seeing eye dog?
Yes. A service animal is not a pet. Service animals include any animal individually trained to do work or perform tasks for the benefit of a person with a disability. The ADA requires you to modify your “no pets” policy to allow the use of a service animal by a person with a disability. This does not mean that you must abandon your “no pets” policy altogether, but simply that you must make an exception to your general rule for service animals.
If an older child has delayed speech or developmental disabilities, can we place that child in the infant or toddler room?
Generally, no. Under most circumstances, children with disabilities must be placed in their age-appropriate classroom, unless the parents or guardians agree otherwise.
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. If the center is asked to do simple procedures that are required by the ADA, it cannot charge the parents extra for those services.
We diaper young children, but we have a policy that we will not accept children more than three years of age who need diapering. Can we reject children older than three who need diapering because of a disability?
Generally, no. Centers that provide personal services such as diapering or toileting assistance for young children must reasonably modify their policies and provide diapering services for older children who need it due to a disability.
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.