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ADA Protections
July 6, 2017
Female doctor examining a baby

ADA Title II

The Americans with Disability Act (ADA) Title II requires that all state and local government provide people with disabilities equal opportunity to benefit from all of their services, programs, and activities. These can include employment, health care, social services, transportation, public education, recreational facilities, voting and access to courts and town facilities.

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Title III applies to public accommodations owned, leased or operated by private entities, certain entities providing professional, education or trade-related licensing and transportation services provided by private entities. Public accommodations include such as private schools, doctor’s offices, daycare centers, retail stores, restaurants, hotels, theaters, convention centers, funeral homes, and recreational facilities. They must adhere to the requirements for providing access to the disabled (e.g., ramps and elevators), remove barriers whenever possible and provide communication services (visual, hearing and speech-related). The following Q & A contains information specific to requirements for schools (including transportation) and day care centers.

Schools

Do public schools have to comply with the ADA?
Yes. The important provisions of Title II state that public entities, including schools, must provide access to programs in an integrated setting. There are occasions where separate programs are necessary to make certain there are equal benefits and/or services. School districts must operate programs, when looked at in total and applied to all facilities, are accessible to disabled children.

Schools may have to make structural improvements to existing buildings to install ramps or elevators. This will not be required if there is an alternative method of making certain there is program access. A school may provide classes at an alternative accessible building or they may relocate classes or activities to other rooms within the schools. Auxiliary aids may be necessary and other services, including interpreters, may have to be provided to meet the communication requirement for the ADA.

No actions are required if they would create a “fundamental alteration” of the programs or activities offered or if they would create an undue financial burden. Otherwise, any actions that will ensure that disabled children will receive the same services and benefits are required.
Are school districts required to remove architectural barriers from existing buildings?
Not always, if the school district can provide the same programs without altering their structures, they do not remove architectural barriers. The ADA requires that if there is

no alternative then structural changes are necessary. If this would create an undue burden on the school district, then they may not have to make the changes.
Are school districts required to make their magnet programs accessible?
Programs for students with disabilities must be comparable those offered to all other students.
Is the ADA applicable to extracurricular activities?
Yes. The ADA is inclusive of all programs, services, and activities provided before and after school as well as for adult community education programs.
When a school district builds a new school, does it have to be accessible?
Yes. Any new school construction must be built to meet ADA accessibility standards. There may be exceptions based on state guidelines.
Are there documents to be viewed to be certain the school district complies with the ADA?
Perhaps. Title II requires people with disabilities and other interested people be involved with any plans and evaluations of development. Contact them to become involved. If they do not agree, then they are not complying with the ADA. A complaint may then be filed.
Are private schools subject to the ADA?
Under Title III no discrimination is allowed by against the disabled by public accommodations, including private schools. It is required that they cannot deny access to the disabled and they make any reasonable modifications to procedures or policies that could deny access to the disabled unless the modification would create a fundamental alteration to the programs. Please note that Title III does not include schools run by religious institutions.
What accommodations will be made for transportation to and from schools?
The ADA does not cover public school transportation. However, the Individuals with Disabilities Education Act (IDEA) considers transportation to be a “related service” and therefore required. The definition includes travel to and from school, between schools, within school buildings, around school buildings and specialized equipment as necessary to provide transportation for a disabled child. To qualify for transportation, students must have an IDEA Individualized Education Program (IEP) that specifies their need for specialized transportation.
What is the procedure for filing a complaint if a school district does not comply with the ADA?
Send a letter to the Department of Justice that includes the parent’s name, address and phone number as well as the name of the person who has been discriminated against. Also, note the name of the school district and a detailed description of the discriminatory act(s) including the date(s) when the discrimination occurred and name(s) of anyone involved in the discriminatory acts. Send all documentation (no original documents) to the U.S. Department of Justice, Civil Rights Division, Coordination and Review Section, P.O. Box 66118, Washington, DC 20035-6118.

Day Care Centers

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.