Does the ADA include day care centers?
Yes. They are considered public accommodations and must comply with the ADA, Title III. Note that child care services provided by the government, including HeadStart and extended school day programs, must comply with Title II of the ADA.
Which child care centers are covered by title III?
Almost all child care providers, including small, home-based centers are covered by Title III. The only exception is day care centers that are controlled by religious entities. They do not have to comply with Title III. If the center is only using the premises of a religious entity, then the exemption does not apply.
What are the requirements for day care centers under Title III?
Day care providers may not discriminate against those with disabilities. Children must have equal opportunity to be included in the day care center's programs. Children with disabilities cannot be excluded unless they could be considered a direct threat. It is also acceptable to exclude the children if inclusion would “fundamentally alter” an existing program. Auxiliary aids and services must be provided to be certain there is effective communication for the child as long as that does not create an undue burden. Day care centers must be physically accessible and barriers must be removed unless that is not readily achievable.
Who decides whether a disabled child belongs in a program?
Day care centers cannot assume that a disability is too severe for the child to belong in their program. They are required to make individual assessments for each disabled child. The center must talk to the parents/ guardians about the child’s needs. They should also consult other professionals (including health care professionals) to determine the child’s daily needs. If it is determined that the child would pose a direct threat to the other children of if their presence would “fundamentally alter” the nature of the day care program, the child may be excluded.
If the daycare center’s insurance raises rates for accepting children with disabilities, must they still be included?
Yes. Day care centers may not exclude a disabled child because they may have to pay higher insurance rates. Any extra insurance costs should be divided equally among all the paying customers.
If a day care center specializes in "group child care" is it acceptable to exclude a disabled child who needs individualized attention?
A: Disabled children often need individualized attention. As long as the individualized attention does not “fundamentally alter” the day care program, the disabled child cannot be excluded for needing that type of care. Often personal assistants may be provided by the parents or a government program at no cost to the center.
What if a disabled child could be dangerous to others?
Any child who poses a direct threat does not have to be included in a program. This means a child who is creating a substantial risk of serious harm to the health and safety of others. Any determination must be based on an individual assessment that includes both the abilities and disabilities of the individual child. Medical professionals may be consulted about communicable diseases and infections.
What if the parent of a child is disabled? Are accommodations required?
Perhaps. Day care centers must provide communication services to their customers, and that would include disabled parents. The disabled person should be able to discuss what types of auxiliary aids and services may be necessary. For example, a parent-teacher conference with a deaf parent and the need for a qualified sign-language interpreter. Note, the day care center may not charge the parent for the cost of the interpreter.
Are disabled children allowed bring a service animal (seeing eye dog) to the center?
Yes, service animals are not a pet and the ADA requires you that service animals are allowed on the premises.
What can be done about the placement of children with delayed developmental or speech disabilities? Can they stay in the rooms with the younger children based on that disability?
Disabled children should be placed with their age group unless the parents/guardians give express permission to keep them in a room with younger children.
Is it acceptable to charge parents for the special services provided to a disabled child?
If the service is reasonable and required by the ADA, it is not acceptable to charge the parents. If a disabled child requires licensed medical personnel that the center would not normally have on staff, the center is not required to provide those services under the ADA. Therefore, the center may charge the parents for the services. Any procedure required by the ADA may not be passed on to the parents. There may be tax credits and/or deductions available to offset the added costs.
Normally, the center does not administer medication the children. Does that hold true for disabled children?
If it is necessary to give medication to a disabled child to make the day care program accessible, then the medication must be administered (including children with diabetes). State laws may dictate the care necessary based on the instructions of doctors or parents/guardians and the daycare center will not be liable for any resulting problems.
Can we children with HIV or AIDS be excluded to protect the other children and the employees?
No. A day care center cannot exclude a child just because he or she has HIV/AIDS. Precautionary measures (e.g., wearing latex gloves) should be followed if a caregiver may come into contact with the child’s bodily fluids (e.g., cleaning and bandaging a wound).
If a a child with mental retardation is part of the center, must they be included in all activities?
A day care center needs to take reasonable steps to integrate every child into all activities. Segregating disabled children is not acceptable under the ADA.
Is it required to provide assistance to children with braces and other mobility impairments?
It is a reasonable accommodation to help the child unless it is so time-consuming that other children would be left unattended or if the situation is so complicated that it licensed health care professionals are the only proper providers.
Is it required to have the buildings, playgrounds, and parking lots of a day care center accessible to disabled people?
Yes, there is an ongoing obligation to remove barriers to access for disabled people as long as it is not cost prohibitive. This includes all portions of a day care center including parking lots, bathrooms and playgrounds.
Are there any reference materials to help parents and daycare providers understand the obligations under the ADA?
There is a publication by The Arc entitled “All Kids Count: Child Care and the ADA,” which could be of assistance. Copies are available by calling 800-433-5255 (voice) or 800-855-1155 (TDD). There is a nominal fee.