Childcare and the Disabled Child ©
Consider the following question:
“If a developmentally disabled child comes into the center wanting our child care center to provide services that would possibly require one on one care, involve lifting the child to use the restroom, or help with a feeding tube etc...must we accept the child? If so I presume that this would require staff members to be specially trained and or have a medical background. I'm concerned also about a workers comp. claim due to lifting a child improperly? Most child care centers take children up to the age of 12 years.”
So we have three issues. The first addresses obligations to deal with the child. The second concerns training and medical background. The third is workers compensation.
I will make the assumption that the childcare facility referred to is a privately owned and not formally associated with a religious organization. I will address the reason for this.
A key term that I will use is ADA. This is a Federal law, the Americans With Disability Act, designed to protect disabled individuals against discrimination in various situations including employment, education, and public accommodations. Most of the information is based on the ADA and guidance by the U.S. Department of Justice. However, I will also address Texas law.
Let’s deal first with the issue of obligation. “If a developmentally disabled child comes into the center wanting our child care center to provide services that would possibly require one on one care, involve lifting the child to use the restroom, or help with a feeding tube etc...must we accept the child?” The answer is not strictly ”yes” or “no.” For this reason I will deal with this issue by listing twelve questions and their respective answers based on the ADA as well as the position taken by the United States Department of Justice. Note that an important element addressed by “Question 4” below turns on whether or not a childcare facility is run by a religious organization.
1. Question: What are public accommodations?
Answer: A public accommodation is a private entity that owns, operates, leases, or leases to, a place of public accommodation. Places of public accommodation include a wide range of entities, such as restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers. Private clubs and religious organizations are exempt from the ADA's title III requirements for public accommodations.
2. Question: Does the ADA cover private apartments and private homes?
Answer: it depends. The ADA does not cover strictly residential private apartments and homes. However, if a day care facility is located in a private residence, those portions of the residence used for that purpose are subject to the ADA's requirements.
3. Question: Does the ADA apply to childcare facilities?
Answer: Yes. Childcare facilities, including those that are privately owned, are classified as public accommodations. In this they are similar to private schools, recreation facilities, restaurants, hotels, movie theaters, and banks. Consequently they must comply with Title III of the ADA. Childcare 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 childcare a facility’s interactions with the children, parents, guardians, and potential customers that it serves. Also note that the employment practices of childcare facilities are covered by other parts of the ADA.
4. Question: Which childcare facilities are covered by title III?
Answer: Almost all of them. Regardless of size or number of employees, most childcare facilities must comply with title III of the ADA. The major exception is childcare facilities run by religious entities such as churches or synagogues. This is because activities controlled by religious organizations are not covered by title III. Be careful about this exemption. Private child care facilities that are operating on the premises of a religious organization are generally not exempt from title III. For example, when an area is leased by a childcare program not controlled or operated by the leasing religious organization, title III applies to the childcare program but not the religious organization. For example, if a private child care program is operated in a building belonging to a church, pays rent to the church, and has no other connection to the church, the program must comply with title III even though the church doesn’t.
5. Question: If Title III of the ADA covers a childcare facility, what are the requirements?
Answer:
i. A childcare facility 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 alteration of the program.
ii. Childcare facilities 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.
iii. Childcare facilities 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.
iv. Childcare facilities 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.
6. Question: How do I decide whether a child with a disability belongs in my program?
Answer: A childcare facility cannot assume that a child's disabilities are too severe for the child to be integrated successfully into the childcare program. The facility must make an individualized assessment about whether it can meet the particular needs of the child without fundamentally altering its program. In making the assessment, the facility 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 facility personnel 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. The U.S. Department of Justice says that providers are often surprised at how simple it is to include children with disabilities in their mainstream programs. An important element is that a childcare facility accepting new children are not required to accept children who would pose a direct threat or one whose presence or necessary care would fundamentally alter the nature of the child care program.
7. Question: If an insurance company says it will raise the rates on a childcare facility if acceptance is extended to children with disabilities, must the facility admit them into a program?
Answer: Yes. An increase in insurance rates is not a legally valid reason for excluding children with disabilities from a childcare program. The facility can treat such extra cost as overhead divided equally among all paying customers.
8. Question: if a childcare facility is full and has a waiting list, must children with disabilities be accepted ahead of others?
Answer: No. Title III does not require providers to take children with disabilities out of turn. Answer: No. The law takes into consideration that many children occasionally need individualized attention, even those children not classified as disabled. If a child needs one-to-one attention due to a disability and can be integrated without fundamentally altering a childcare program, the child cannot be excluded solely because the child needs one-to-one care. The Department of Justice uses the example of a child with Down Syndrome and significant mental retardation. If such a child is applied 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 childcare facility such as by the parents or though a government program, the facility cannot exclude the child from the program solely because of the need for one-to-one care. 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 childcare program. As in other cases, an individualized assessment is required. However, the ADA generally does not require facilities to hire additional staff or provide constant one-to-one supervision of a particular child with a disability.
9. Question: If a child’s presence is dangerous to others, must the facility accept the child?
Answer: No. Children who pose a direct threat do not have to be admitted into a program. A direct threat is a substantial risk of serious harm to the health and safety of others. 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. To find out whether a child has a medical condition that poses a significant health threat to others, a childcare facility 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. A facility may also inquire about specific conditions, such as active infectious tuberculosis, that in fact pose a direct threat.
10. Question: Consider a situation in which in which a child in a childcare facility hits and bites other children. Assume that the parents of that child are say the facility can't expel the child because the bad behavior is due to a disability. What can the facility do?
Answer: The first thing the facility should do is try to work with the parents to see if there are reasonable ways of curbing the child's bad behavior. He may need extra naps, "time out," or changes in his diet or medication. If reasonable efforts have been made and the child continues to bite and hit children or staff, he may be expelled from the program even if he has a disability. The ADA does not require providers to take any action that would pose a direct threat -- a substantial risk of serious harm -- to the health or safety of others. A facility should not make assumptions, however, about how a child with a disability is likely to behave based on their past experiences with other children with disabilities. Each situation must be considered individually.
11. Question: One of the children in a facility has parents who are deaf. Personnel need to have a long discussion with them about their child's behavior and development. Must the facility provide a sign language interpreter for the meeting?
Answer: It depends. Childcare facilities must provide effective communication to the customers they serve, including parents and guardians with disabilities, unless doing so poses an undue burden. The person with a disability should be consulted about what types of auxiliary aids and services will be necessary in a particular context, given the complexity, duration, and nature of the communication, as well as the person's communication skills and history. Different types of auxiliary aids and services may be required for lengthy parent-teacher conferences than will normally be required for the types of incidental day-to-day communication that take place when children are dropped off or picked up from child care. As with other actions required by the ADA, providers cannot impose the cost of a qualified sign language interpreter or other auxiliary aid or service on the parent or guardian. A particular auxiliary aid or service is not required by title III if it would pose an undue burden, that is, a significant difficulty or expense, relative to the facility or parent company's resources.
12. Question: Can a childcare facility charge the parents of the child for special services provided to a child with a disability, provided that the charges are reasonable?
Answer: It depends. If the service is required by the ADA, the facility cannot impose a surcharge for it. It is only if the facility goes beyond what is required by law that a charge can be levied for those services. For instance, if a child requires complicated medical procedures that can only be done by licensed medical personnel, and the facility does not normally have such personnel on staff, the facility would not be required to provide the medical services under the ADA. If the facility 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 facility is asked to do simple procedures that are required by the ADA -- such as finger-prick blood glucose tests for children with diabetes (see question 20) -- 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.
With foregoing the twelve questions and answers in mind, consider some particular situations that have been addressed by the United States Department of Justice. Sunshine Child Center had to agree to: (1) provide diapering services to children who, because of their disabilities, require diapering more often or at a later age than nondisabled children; (2) put on and remove the complainant's leg braces as necessary; (3) ensure that the complainant was not unnecessarily segregated from her age-appropriate classroom; (4) engage in readily achievable barrier removal at its existing facility; and (5) design and construct a new facility (planned independently of the Department's investigation) in a manner that was accessible to persons with disabilities.
The Department of Justice also entered in a settlement agreement with KinderCare Learning Centers wherein KinderCare agreed to provide appropriate care for children with diabetes, including providing finger-prick blood glucose tests. In another case La Petite Academy agreed to follow the same procedures. In a separate case La Petite Academy 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.
Texas law also speaks to the issue of obligation. For example, the Texas Administrative Code, in Rule 746.2301, says:
“You must ensure that children who need special care due to disabling or limiting conditions receive the care recommended by a health-care professional or qualified professionals affiliated with the local school district or early childhood intervention program. These basic care requirements must be documented and on file for review at the child-care center during operating hours. Activities must integrate all children with or without special care needs. You may need to adapt equipment and vary methods to ensure that you care for children with special needs in a natural environment.”
With the forgoing in mind, let us look at the second and third issues: training and workers comp. As to training, we can begin with Section 42.0421 of the Texas Human Resources Code that requires training in “child growth and development.”
When we go to the regulations promulgated by the DFPS we find Section 747.1307. That section specifies that of the 15 hours of annual training, of nine hours of training one of the topics can (not must) be “Care of children with special needs.”
The third and final issue concerns workers compensation exposure. Any activity that is a part of an employee’s work can be subject of workers compensation liability. Though the question of specific incidents is complex, clearly activity engaged in as part of caring for a disabled child could be a workers compensation issue.