The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990. This law provides persons with disabilities of all ages protection against discrimination in employment, public transportation services, public accommodations operated by private entities(including child care programs), services provided by state and local government and telecommunication services. Disability is defined as a physical or mental impairment which substantially limits one or more of the "major life activities" such as caring for oneself, walking, seeing, hearing, speaking, breathing and learning. It also protects people with a history of a disability and anyone thought to have a disability. Child care centers, family day care homes and nursery schools(except for those operated by churches)must be in compliance with this. People with disabilities must be afforded the same rights and privileges that others enjoy.
If a center has a staff of 15 or more full-time workers(30 hours per week for 20 weeks), then it is covered by Title1, the employment section of the ADA. Persons responsible for hiring cannot ask an applicant whether she or he has a disability, about the nature or severity of a disability or require the applicant to take a medical examination before making a job offer. However, applicants can be asked questions about their ability to perform job-related functions. The employer must determine whether an individual can perform the "essential functions" of the job with a "reasonable accommodation" that would not pose an "undue hardship" on the employer.
Factors to consider in determining whether an accommodation is an undue hardship are: cost of the accommodation, employer’s size and financial resources.
The ADA prohibits eligibility criteria that screen out children with disabilities from the opportunity to be in child care programs. Admission forms may not ask specifically about the presence of a disability. This means that child care providers will need to attempt to accommodate each child. When a family applies on behalf of a child with disabilities, discussions regarding provision of accommodations need to take place.
Private child care providers are responsible for making their existing facility physically accessible to employees, children or parents with disabilities if the recommended modification is "readily achievable." This means easy to make without much difficulty or expense.
Examples of modifications are: installing ramps; repositioning shelves; rearranging tables, chairs and other furniture; widening doors; and installing offset hinges to widen doorways.
Examples of possible changes in child care facilities that may need to be made to accommodate a child with a disability include: revision of policies and procedures, curriculum adaptations, removal of physical barriers, provision of additional staff training, alteration of staffing patterns and provision of certain adaptive equipment.
The ADA also prohibits child care providers from charging a higher tuition rate for children with disabilities. Costs incurred may not be passed on to the individual child. Providers may, however, raise tuition rates for all children.
There are two specific situations where programs may deny services:
The first deals with unrealistic or costly changes. For example, an additional adult needed to accommodate a child with special needs may be considered an undue burden for a family day care provider. However, larger child care centers with greater financial resources will be expected to make more changes.
The second situation where programs may deny services to a child or deny employment to an individual is when either poses "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids and services."
In any case, child care providers should document all their efforts to accommodate children and adults(staff and parents)who have disabilities.
There are generous tax credits available for centers that make changes as a result of the ADA.
A tax credit of 40% is available for the first $6,000 of the salary of a new employee with a disability(IRS Form No. 8826 Disabled Access Credit). A deduction is available up to $15,000 per year for removal of architectural and transportation barriers.
Eligible small businesses (under $1 million in gross receipts with 30 or less employees)can deduct 50% of ADA expenditures that exceed $250 up to $10, 250.
What happens if a provider refuses to accommodate an individual with a disability? A complaint may be filed with the U.S. Department of Justice. In addition, lawsuits can be filed for violation of federal and/or state civil rights discrimination laws.
Meeting the ADA Challenge
The ADA is landmark legislation in the provision of full rights, benefits and opportunities for individuals with disabilities. Persons without disabilities will also benefit in significant ways from this law. Let’s assume that all children with disabilities can be accommodated. We just need to determine how, and if, resources are needed and how to access the multitude of resources that are available. Child care providers are a creative and resourceful group of people, by definition of what they do. There is no doubt that they will meet the ADA challenge. In many cases, they already have.
For more information about the ADA, contact the ADA Technical Assistance Hotline, operated by the Disability Rights Education and Defense Fund, at 800-514-0301 (Voice) or 800-514-0383 (TDD). This Department of Justice funded information line, free to callers, operates from 9:00a.m. to 5:00p.m. Pacific time.