Future Reflections Spring 1999, Vol. 18 No. 1

No Kidding Around for Child Care Centers and the ADA

Reprinted from the Winter, 1998, issue of The ADA Today, a publication of the Rocky Mountain ADA Technical Assistance Center.

1. Does the Americans with Disabilities Act (ADA) apply to child care centers? Yes. Privately run child care centers—like other public accommodations such as private schools, recreation centers, restaurants, hotels, movie theaters, and banks—must comply with title III of the ADA. Child care 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 child care center’s interactions with the children, parents, guardians, and potential customers that it serves.

Child care center employment practices are covered by other parts of the ADA. For more information about the ADA and employment practices, please call the Equal Employment Opportunity Commission at (800) 669-4000(voice) or (800) 669-6820 (TTY).

2. Which child care centers are covered by title III? Almost all child care providers, regardless of size or number of employees, must comply with title III of the ADA. Even small, home-based centers that may not have to follow some state laws are covered by title III. The exception is child care centers that are actually run by religious entities such as churches, mosques, or synagogues.

However, private child care centers that are operating on the premises of a religious organization are generally not exempt from title III. Where such areas are leased by a child care program not controlled or operated by the religious organization title III applies to the child care program but not the religious organization. For example, if a private child care program is operated out of a church, pays rent to the church, and has no other connection to the church, the program has to comply with title III but the church does not.

3. What are the basic requirements of title III? The ADA requires that child care providers not discriminate against persons with disabilities on the basis of disability; that is, that they provide children and parents with disabilities with an equal opportunity to participate in the child care center’s programs and services. Specifically:

Centers 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.
Centers 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.
Centers 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.
Centers 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.

4. How do I decide whether a child with a disability belongs in my program? Child care centers cannot just assume that a child’s disabilities are too severe for the child to be integrated successfully into the center’s child care program. The center must make an individualized assessment about whether it can meet the particular needs of the child without fundamentally altering its program. In making this assessment, the caregiver 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 caregiver 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. Providers are often surprised at how simple it is to include children with disabilities in their mainstream programs.

Child care centers that are accepting new children are not required to accept children who would pose a direct threat (see question 8) or whose presence or necessary care would fundamentally alter the nature of the child care program.

5. 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.

6. 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.

7. 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-to-one attention due to a disability can be integrated without fundamentally altering a child care program, the child cannot be excluded solely because the child needs one-to-one care.

For instance, if a child with Down Syndrome and significant mental retardation applies 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 child care center (usually by the parents or through a government program), the child cannot be excluded from the program solely because of the need for one-to-one care. Any 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 child care program. As in other cases, an individualized assessment is required. But the ADA generally does not require centers to hire additional staff or provide constant one-to-one supervision of a particular child with a disability.

8. 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 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, child care providers may ask all applicants whether a child has any diseases that are communicable through the types of incident contact expected to occur in child care settings. Providers may also inquire about specific conditions, such as active infectious tuberculosis, that in fact poses a direct threat.

9. One of the children in my center hits and bites other children. His parents are now saying that I can’t expel him because his bad behavior is due to a disability. What can I do? The first thing the provider 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. Centers 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.

10. We have a “no pets” policy. Do I have to allow a child with a disability to bring a service animal? Yes. A service animal is not a pet. 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.

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