ADA Q&A: Child Care Providers
By Deborah Leuchovius, PACER ADA Specialist
Many questions we hear at PACER related to enforcement of the Americans with Disabilities Act (ADA) are about how the ADA affects child care providers. Here are answers to some of the most frequently asked questions:
Are church operated child care centers covered by the ADA?
No, not by the ADA. Churches and other religious entities are exempted from having to comply with the ADA. If a child care program is operated by the church itself, the church is not required to comply with the ADA. However, if the church leases space to a privately operated day care center, the private child care center would have to comply with ADA provisions. NOTE: Although churches may be exempted by the ADA, they are not specifically exempted in Minnesota’s Human Rights Act. Under that state law, which also requires that public accommodations such as child care centers provide access to their services to individuals with disabilities, church-run child care centers will be just as accountable as other Minnesota child care providers.
Are family child care providers required to comply with the ADA?
Yes. Family child care providers may not discriminate against children with disabilities. The portion of a home that is used for child care would be covered under the ADA. However, many family day care providers have expressed concern that they will be required to make major architectural alterations to their home — such as building ramps or altering bathrooms. This is probably not the case. Family child care providers, like other child care providers, would not have to make structural alterations to their home if these are not “readily achievable.” This means without much difficulty or expense. This will always be judged in relation to the overall financial resources of a business. What would be a hardship for a family child care provider may not be considered a hardship for a facility that has more financial resources to draw on. However, family child care providers would still be required to make modifications to policies, activities and procedures that would not be a financial hardship.
Can child care providers charge more for tuition for children with disabilities?
Under the ADA, child care providers cannot charge the family of a child with disabilities for the total costs of having to comply with the ADA. Costs must be spread out to all the families enrolled, or taken as a tax credit or tax deduction. However, there are some exceptions. It appears that families may be charged for measures which exceed compliance with the ADA, or when a child care provider would not be required to make an accommodation or remove an architectural barrier because it would pose a financial or administrative hardship.
Can a child care center refuse to accept my child with a disability because they are concerned that their liability insurance rates will increase?
No. Department of Justice guidelines make it clear that under ADA a child care center cannot refuse to accept a child with a disability, or employ a staff person with a disability, because it fears its insurance company will raise its rates.
What kinds of accommodations would a child care center be required to make under the ADA?
Of course architectural modifications are the kinds of accommodations that most people think of. But there are many less expensive accommodations that also meet the needs of children with disabilities. It may mean adapting snack preparation and schedules to meet the dietary requirements of a child with diabetes, or providing games, puzzles and toys that reflect a wide range of abilities and development, or using more visual information during activities that include children with hearing impairments.
Do child care centers have to accept all children with disabilities, no matter what the type or level of disability?
No. There are situations where child care providers can legally refuse to accept a child with a disability — if the child poses a direct threat to others, or if providing an accommodation would pose an undue hardship on the provider, or fundamentally alter the nature of the program. But each person must be considered on an individual basis. Children with disabilities cannot be excluded merely because they have a disability, or based on myths and stereotypes about that disability. Providers must make good faith efforts to consider each child individually. The most important step is that providers and parents sit down together to discuss what the specific needs of the child are, and then see if they are able to meet those needs. If there are costs involved in making accommodations, providers must analyze whether they would pose an undue burden (significant difficulty or expense). Care providers should remember that there are tax credits or deductions available to help them make these accommodations, and should investigate outside funding in addition to their own resources before they make a final decision on whether or not an accommodation would be an undue burden.
Does the ADA affect extended-day child care for school-age children?
Yes. Extended-day child care programs operated by school districts are covered by Title II of the ADA. They may not discriminate against individuals with disabilities and must provide access to their programs for people with disabilities. Again, these providers are required to make accommodations unless it can be demonstrated that doing so would pose an undue burden.
Can a child care provider refuse to accept children with disabilities who are not toilet trained?
In the past, many children with disabilities have been excluded from child care centers and nursery schools because of eligibility requirements that children be toilet trained by a specific age. The ADA, however, states that eligibility requirements must not have the effect of screening out people with disabilities. Toilet training requirements have this effect because many children with disabilities will never have bowel or bladder control as a result of their disabilities.
Another part of the law states that services of a personal nature including eating, dressing, and toileting do not have to be provided unless they are a service normally provided by a facility. Child care centers, however, usually do provide some degree of assistance in these areas to young children. They should therefore be prepared to modify these policies and accommodate children with disabilities who need toileting assistance.
Some states have established clear guidelines for their child care centers that expressly forbid such requirements. Minnesota is not yet one of them.
What if our child care center refuses to admit my child because they say they can’t afford to make the accommodations necessary to meet my child’s needs?
If you are not satisfied that your child was given a fair consideration, or that it would not in fact be an undue burden for the child care provider, you may file a complaint with the Department of Justice. It will investigate your case and can impose fines of up to $50,000 for a first violation. You can also file a private suit. Private plaintiffs cannot receive money damages, but can receive injunctive relief — such as a court order requiring the day care center to make the necessary accommodations — and attorney’s fees.
For more information, visit the Department of Justice ADA Web site, ada.gov/chcaflyr.htm , or call the Department of Justice ADA information line: 800-514-0301 (voice) or 800-514-0383 (TDD).
How to Find Appropriate Child Care
Finding suitable child care for your son or daughter with a disability can be a challenge— yet the benefits can be significant. The right program can help your child learn from typically developing children, form friendships, and develop a positive self-image, say early childhood experts.
As you begin your search, remember that a good program is designed to meet the individual needs of each child, and its staff should be willing to make modifications if necessary. A good program also will encourage your participation and offer to have its staff communicate regularly with your child’s health and educational providers, say PACER experts.
When considering child care providers, you may want to begin by asking about their:
- License and accreditation
- Experience in caring for children with special needs and any specialized training staff may have taken
- Staff-to-child ratio
- Cost and any financial assistance available
- Process for handling children’s illnesses and medical emergencies
- Discipline policies
Before making a decision, visit each program at different times during the day. Look for such things as:
- A clean, safe environment, inside and out
- Happy, active children
- A variety of toys and learning materials
- Positive interactions among staff and children
- Children with special needs being included in group activities
- Activities and play materials that are adapted for children with special needs
- A suitable place for children to nap
- An outdoor play area that is safe and well supervised
After visiting a few programs and selecting one or two that you think might best meet your child’s needs, check references. Ask other parents who use the center questions such as:
- Is their child happy here?
- Is the caregiver reliable?
- Would they recommend the program?
- Do they feel respected and valued?
- Does the staff understand and respect their culture and family values?
If you like what you hear, ask yourself:
- Would my child be happy here?
- Can the program meet my child’s needs?
- Are the staff’s values similar to mine?
Equipped with this information, you will be able to make a more confident, informed choice about a child care program. After you’ve made your selection, you can begin working with the staff to prepare them for your child’s arrival.
You can start by completing all necessary paperwork, such as information release forms if you want the staff to be able to communicate with your child’s other providers. You also could suggest some reading material about your child’s disability or special needs and share any other suggestions that might assist the staff in caring for your child.
If your child has an Individual Family Service Plan (IFSP) or an Individualized Education Program (IEP), it would help to share a copy of the document with the staff. Be sure to let the staff know about any services that your child receives from other agencies that should be coordinated with child care. If necessary, ask the IFSP or IEP team to consult with the child care staff.
You may even want to schedule regular meetings with all the people involved in your child’s life. If the child care staff cannot attend IFSP or IEP team meetings, ask them to prepare written comments about your child’s progress and any observations that they believe are important for the team to know.
You also may want to discuss the following items with the staff prior to your child’s arrival:
- Special equipment, considerations, or accommodations that your child requires
- Your child’s personality and temperament
- Favorite toys, games, activities
- Your child’s communication style and needs
- Physical or health-related conditions, including medications that your child takes
- Ways the staff can prepare the other children for your child’s arrival, such as sharing books about disabilities or preparing responses to potential questions regarding your child’s disability
With the staff now ready, consider preparing your child for this new experience. You and your child could, for example, visit the staff and other children a few times before starting the program.
Once your child begins attending child care, good communication between the staff and family can keep things working well. Sending a notebook with daily information back and forth between home and the child care provider works well for many families.
Finding a child care provider who is a good match for your child with disabilities can take time. To avoid making a rushed decision, try to begin looking several months before you need the placement. The results of your effort will be well worth the time invested.
Whether you are a parent seeking a child care provider, an early childhood teacher, or a child care provider wanting to learn more about including children with special needs, PACER suggests contacting these state funded organizations.
The Center for Inclusive Child Care provides free child care consultations and resources to parents, licensed professionals, and friends, neighbors, or family members who provide child care. Online services help you:
- Find answers to frequently asked questions
- Submit a question and receive a personal response
- Find a consultant to help answer questions and solve inclusion problems
Visit www.inclusivechildcare.org to learn more.