The Office of Child Care’s National Child Care Information and Technical Assistance Center

Legal Foundations of Inclusion

Inclusion InstituteMay, 2011

This presentation provides information, not legal advice

Presented by Abby J. Cohen, J.D.Region IX State TA Specialist

Agenda

Background Laws, with an emphasis on ADA Resources

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Background

Who Are the Children We Are Talking About?

11.3 million children younger than the age of 5 are enrolled in some form of child care

21.8 percent of households have a child with a special health care need

Approximately 10.2 million children younger than the age of 18 have a special health care need

Who and How Many Children Are We Talking About?

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Sources: Fertility & Family Statistics Branch, Housing and Household Economic Statistics Division, U.S. Census Bureau. (2008). Who’s minding the kids? Child care arrangements: Spring 2005: Detailed tables. Retrieved March 9, 2009, from www.census.gov/population/www/socdemo/child/ppl-2005.html; Maternal and Child Heath Bureau, Health Resource and Services Administration, U.S. Department of Health and Human Services. (2008). The national survey of children with special health care needs, Chartbook 2005–2006. Retrieved March 9, 2009, from http://mchb.hrsa.gov/cshcn05/NF/1prevalence/individuals.htm

Who and How Many Children Are We Talking About (con.)?

A recent study found that approximately 13 percent of children in its sample had developmental delays, thus eligible for Individuals with Disabilities Education Act (IDEA) Part C services

For purposes of comparison, in 2002, Part C served 2.2 percent of children younger than 3

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Source: Rosenberg, S. A., Zhang, D., & Robinson, C. C. (2008, June). Prevalence of developmental delays and participation in early intervention services for young children. Pediatrics, 121(6). Retrieved March 9, 2009, from www.pediatrics.org/cgi/content/full/121/6/e1503

Who and How Many Children Are We Talking About (con.)?

Head Start (HS), requires that at least 10 percent of children served be those with disabilities

Data show that in 2009, 12 percent of enrolled children had a disability, with 50 percent diagnosed before entering HS and 50 percent diagnosed during the program year

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Source: Center For Law and Social Policy. (2010, July). Head Start participants, programs, families, and staff in 2009. Retrieved May 10, 2011, from www.clasp.org/admin/site/publications/files/hs-preschool-pir-2009.pdf.

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Laws Relevant to Inclusionin Child Care Settings

Federal and State LawsImpacting Inclusion

Background

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

these laws no definition or term “inclusion” See new joint statement on inclusion issued by

NAEYC and DEC

Distinguishing Types of Laws

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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

Primary Federal Laws

Civil rights laws Section 504 of the Rehabilitation Act of 1973 applies

to federally funded programs The Americans with Disabilities Act (ADA) of 1990

and the ADA Amendments Act of 2008 provide equal rights to public accommodations

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Primary Federal Laws, con.

Entitlements to services IDEA of 1975 provides specified services by right

to eligible persons with disabilities; reauthorized in 2004

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ADA Structure

Prohibits discrimination in or by the following: 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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ADA Definition of Disability

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

When determining whether a disability is present, mitigating or corrective measures are not taken into account (e.g., medicine or prosthesis)

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Major Life Activities

Federal law defines major life activities to include the following: Walking Seeing Hearing Learning Taking care of oneself

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ADA Protects Several Groups

Individuals with disabilities as defined by ADA Individuals with a record of having disabilities Individuals who are regarded as having

disabilities Individuals or entities associated with people

with disabilities

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Direct Threat: A Narrow Exception

Rarely, people with disabilities who pose a significant risk to others may be excluded if risk cannot be eliminated by modifications Exclusion due to risk is an exceptional case; this is

not the typical child who bites!

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Public Accommodations

No public funding required; simply must be open to the public

Programs operated by religious organizations are exempt

Child care centers and family child care homes are covered

U.S. Territories must comply; Tribes cannot be sued by individuals, but can be sued by the Federal Government

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When Programs Are Required to Admit a Child With a Disability

Scenario: A parent requests to enroll his/her child with a

disability in a child care program The program should evaluate the individual

needs of the child with a disability The program should follow the evaluation

process to determine the child’s/program’s 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 ADA Accessibility Guideline 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 the 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.

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

NoDoes the child need auxiliary aids and services to ensure effective communication?

Are there any reasonable alternatives to accommodate the child?

YesYes

No

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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Overarching Notion of Reasonable Accommodations

Examine program resources, tax credits and deductions (IRS Code Sections 44 and 190), and any available community resources

Provide individualized assessment What is reasonable is based on conditions at a

particular point in time, and this can change!

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Eligibility/Admissions

Must eliminate all eligibility criteria that explicitly state children with disabilities cannot be included

Must eliminate admissions criteria such as “toilet trained,” unless it is clear that this does not apply to children with disabilities

May impose legitimate safety requirements if necessary for safe operation

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Eligibility: Charges

Providers may not impose a surcharge on a person with a disability to cover the costs of measures that are required under ADA

States are not precluded from paying more under ADA (in other words, there may be a special needs subsidy rate)

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Modification of Policies, Practices, and Procedures

Providers are required to make reasonable modifications to policies, practices, and procedures unless the changes would fundamentally alter the nature of the program

If a modification would fundamentally alter the program, providers must determine if a reasonable alternative exists

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Examples

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

program hours

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What examples do you have?

Fundamental Alteration

Very limited exception Requires more than discomfort or

inconvenience Must “turn the program upside down” Insulin injection may be a fundamental

alteration

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Medication Administration/Health Procedures

Must administer medication if it is considered a reasonable accommodation (Alvarez v. Fountainhead, 55 F. Supp.2d.1048, N.D. Cal. 1999)

Several States require specialized training in medication administration (e.g., CO, CT, DE, NY, UT, WV, WY)

Settlements involving the U.S. Department of Justice (DOJ): Inhalers, Epi-Pens, and blood-prick testing

In CA: With conditions, insulin pumps, G-tube feeding, glucagon injections

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Effective Communication

Ensure the provision of effective communication Provide auxiliary aids and services Not required if it would result in a fundamental

alteration or undue burden (i.e., a significant difficulty or expense)

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Examples

Buying large print books Learning sign language with an infant or toddler Using picture cards

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Removing Barriers to Physical Access

Three situations Existing facilities Major alterations/renovations to facilities Newly constructed facilities

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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

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Examples

Permanent or temporary ramps Grab bars in restrooms Wide doorways Furniture placement

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Alterations

Alterations means changes that affect usability (i.e., remodeling and renovation)

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

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New Construction

Child care facilities built or major renovations made after January 26, 1993, must comply with the ADA Accessibility Guidelines

Guidelines for children’s environments and play areas have been developed under the authority of the Access Board; just recently adopted by the Department of Justice as regulations!

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Access Guidelines

Extensive information about access guidelines is available at www.access-board.gov

Information includes play area guide and FAQs See also: www.ada.gov/regs2010/ADAregs2010.htm

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Enforcement

Law is enforced via private lawsuits or by the U.S. DOJ

DOJ can seek imposition of civil penalties up to $55,000 for the first violation

DOJ has regularly enforced in child care; a recent settlement occurred against Nobel Learning Communities for failing to enroll and/or provide reasonable accommodations to preschool children with autism spectrum disorder and a brain shunt.

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Title II(a) Provisions

Nondiscrimination in governmental/public body services, programs, and activities

Includes school district programs, park and recreation, etc.

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Distinctive Provisions

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

Someone who poses a direct threat is not qualified

A public entity may offer separate or special programs, but individuals with disabilities cannot be denied access to standard programs

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Distinctive Provisions, con.

Must provide “program accessibility” unless to do so would create a fundamental alteration or undue financial or administrative burden; consider possible alternatives

Determination should be made by head of agency (with written findings)

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Distinctive Provisions, con.

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Must provide equally effective communication unless to do so would create a fundamental alteration or undue financial or administrative burden

Title II: Administration Requirements

Develop a grievance procedure Designate a compliance officer Conduct a self-evaluation Provide information about Title II requirements to

the public

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Enforced through the U.S. DOJ, Office of Civil Rights, Department of Health and Human Services, the U.S. Department of Education, or through Federal district court

Section 504 Covers Federal Government executive agencies Applies only to entities receiving Federal funds

(the Child and Adult Care Food Program, the Child Care and Development Fund, HS, Title I pre-k, Part B Section 619, etc.)

Similar protections to Title II of ADA No religious exemption States have no immunity from suit

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State Law Equivalents

Determine if your state law parallels or provides greater protection than ADA or Section 504.

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IDEA Federal entitlement to services These are responsibilities of the states/school districts,

not private programs Part B deals with children 3 to 21 years of age

Section 619 of Part B deals with children 3 to 5 years of age

Part C deals with infants and toddlers, birth to age 3

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Part B

Children ages 3 to 5 who meet eligibility requirements are guaranteed a free appropriate public education (FAPE)

Services must be provided in the least restrictive environment (LRE), which includes child care settings

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Eligibility

Mental retardation Hearing impairment, including deafness Speech or language impairment Visual impairment, including blindness Serious emotional disturbance Orthopedic impairment Autism

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Eligibility, con.

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Traumatic brain injury Other health impairment Specific learning disability Deafness/blindness Multiple disabilities

… AND needs special education

Least Restrictive Environment (LRE)

Public agencies must ensure that to the maximum extent appropriate, children with disabilities . . . are educated with children who are nondisabled

Settings other than general education can only be used if the nature or severity of the disability is such that regular classes with the use of supplementary aids and services cannot be achieved satisfactorily

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Individualized Education Program (IEP)

Children found eligible under Part B are entitled to have an IEP developed by a team including parents and professionals

This specifies the child’s special education, related services, supplementary aids and services, etc.

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Individualized Education Program

Services will be provided to enable the child to participate with nondisabled children

An IEP must include an explanation of the extent, if any, to which the child will not participate with nondisabled children

In situations in which there is no public preschool, courts may find that the LRE is in a private preschool setting, especially where the IEP spells out a need for interaction with typically developing peers.

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Part C

Eligibility includes the following: Children with developmental delays Has a diagnosed physical or mental condition that

has a high probability of resulting in developmental delay;

At state option, children at risk of having substantial developmental delays

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Natural Environments

To the maximum extent appropriate to the needs of the child, early intervention services must be provided in natural environments

Includes a child’s home “Community settings in which children without

disabilities participate,” such as child care Natural environments means settings that are

natural or normal for the child’s age peers who have no disabilities

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Natural Environments (con.)

Settings other than natural environments can only be used if early intervention cannot be achieved satisfactorily for the infant or toddler

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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Individualized Family Services Plan (IFSP)

Children eligible under Part C are entitled to an IFSP developed by the IFSP team which includes parents and professionals

Early intervention services necessary to meet the outcomes are detailed

Each IFSP must include a statement of the natural environments in which the services will be provided and a justification of the extent, if any, to which the services will not be provided in a natural environment

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Resources

Access Board, www.access-board.gov ADA homepage, U.S. DOJ,

www.usdoj.gov/crt/ada/adahom1.htm; www.ada.gov/regs2010/ADAregs2010.htm

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Resources, con.

Center on the Social and Emotional Foundations for Early Learning, http://csefel.uiuc.edu

Child Care Plus+: The Center on Inclusion in Early Childhood, www.ccplus.org

Center for Inclusive Child Care, www.inclusivechildcare.org Education Law Center, www.edlawcenter.org National Early Childhood Technical Assistance Center,

www.nectac.org Special Quest, www.specialquest.org

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Thank You

Prepared by NCCIC

Phone: 800-616-2242 ● Fax: 800-716-2242Email: info@nccic.org ● Web: http://nccic.acf.hhs.gov

NCCIC does not endorse any non-Federal organization, publication, or resource.

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