Child Care and the ADA: Litigation Updates

Article excerpt

The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of a disability for many private businesses--including daycare centers (with the exception of church-operated programs). This means that child care programs, including family daycare homes, must make "reasonable accommodations" to give children with disabilities equal access to program participation. "Reasonable accomodations" may include revision of policies and procedures, removal of physical barriers, provision of adaptive equipment, curriculum adaptations, changes in staffing patterns and additional staff training.

The ADA does provide a few exceptions under which child care program may exclude children with disabilities. Under one very narrow exception, for example, a provider is allowed to exclude a child whose condition poses a "direct threat" to others. Any decision to exclude a child on this basis must be made using objective information--such as medical or psychological evaluations--and cannot be based on sheer speculation. In addition, if the threat of harm can be eliminated through "reasonable accommodations" in the program, these accommodations must be made.

The ADA also permits a child care provider to exclude a child with a disability if accommodating the child requires: 1) changes in policies, practices or procedures that "fundamentally alter the nature of the program;" 2) provision of equipment or services that "fundamentally alter the nature of the program" or that represent an "undue burden" (significant difficulty or expense) on the provider; or 3) architectural changes that are not "readily achievable" (easily accomplished without significant difficulty or expense).

The definition of "undue burden" and "readily achievable" depends largely on a program's resources--things like budget, space and childstaff ratio. For example, a large chain of child care programs that typically provides transportation services may be able to buy a wheelchair lift for a van; for a small family daycare home, however, such a purchase would create an "undue burden."

Looking at relevant cases

Since the implementation of the ADA, many questions have arisen about the meaning and precise application of the law as it applies to child care programs. While many of these issues are worked out informally between parents and child care centers, some have proceeded to a more formal means of dispute resolution--complaints filed with the Department of Justice or actual lawsuits. The resolutions of these complaints or lawsuits help to clarify the ADA's meaning and application, and provide guidelines that can help people avoid similar disputes. What follows is a brief summary of some of the issues and most relevant recent developments.

Licensing barriers

The ADA clearly requires child care programs of all sizes to care for and accommodate the needs of children with disabilities whenever they are reasonably able to do so. Additionally, the ADA does not permit state agencies, such as those responsible for licensing child care facilities, to create or enforce regulations that might prevent the participation of children with disabilities in child care programs. Unfortunately, however, pre-ADA licensing regulations in some states have had that effect.

In Connecticut, the parents of a child with diabetes sued a child care program when that program refused to perform the finger prick blood glucose test on the child. The program based its refusal in part on the understanding that state licensing regulations would not permt this procedure to be performed in child care. The suit was quickly settled with an agreement that the child would be enrolled and would have the blood glucose test done at a nearby pediatrician's office.

The parents, recognizing that the child care center had few options in light of existing licensing regulations, then sued the state of Connecticut, alleging that the state regulations interfered with their child's rights under the ADA and Connecticut's own anti-discrimination law (Bren v. …