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The Office of Child Care’s National Child Care Information and Technical Assistance Center
Legal Foundations of Inclusion
Inclusion InstituteMay, 2011
This presentation provides information, not legal advice
Presented by Abby J. Cohen, J.D.Region IX State TA Specialist
11.3 million children younger than the age of 5 are enrolled in some form of child care
21.8 percent of households have a child with a special health care need
Approximately 10.2 million children younger than the age of 18 have a special health care need
Who and How Many Children Are We Talking About?
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Sources: Fertility & Family Statistics Branch, Housing and Household Economic Statistics Division, U.S. Census Bureau. (2008). Who’s minding the kids? Child care arrangements: Spring 2005: Detailed tables. Retrieved March 9, 2009, from www.census.gov/population/www/socdemo/child/ppl-2005.html; Maternal and Child Heath Bureau, Health Resource and Services Administration, U.S. Department of Health and Human Services. (2008). The national survey of children with special health care needs, Chartbook 2005–2006. Retrieved March 9, 2009, from http://mchb.hrsa.gov/cshcn05/NF/1prevalence/individuals.htm
Who and How Many Children Are We Talking About (con.)?
A recent study found that approximately 13 percent of children in its sample had developmental delays, thus eligible for Individuals with Disabilities Education Act (IDEA) Part C services
For purposes of comparison, in 2002, Part C served 2.2 percent of children younger than 3
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Source: Rosenberg, S. A., Zhang, D., & Robinson, C. C. (2008, June). Prevalence of developmental delays and participation in early intervention services for young children. Pediatrics, 121(6). Retrieved March 9, 2009, from www.pediatrics.org/cgi/content/full/121/6/e1503
Who and How Many Children Are We Talking About (con.)?
Head Start (HS), requires that at least 10 percent of children served be those with disabilities
Data show that in 2009, 12 percent of enrolled children had a disability, with 50 percent diagnosed before entering HS and 50 percent diagnosed during the program year
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Source: Center For Law and Social Policy. (2010, July). Head Start participants, programs, families, and staff in 2009. Retrieved May 10, 2011, from www.clasp.org/admin/site/publications/files/hs-preschool-pir-2009.pdf.
Background
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History of discrimination
Attitudes toward people with disabilities
Law both leads and follows
Recognizing benefits of inclusion; yet in all these laws no definition or term “inclusion”
See new joint statement on inclusion issued by NAEYC and DEC
Distinguishing Types of Laws
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Enactment of laws to protect civil rights Concern with discrimination by public
accommodations Concern with discrimination by publicly funded
entities Enactment of laws to provide services by
entitlement
Primary Federal Laws
Civil rights laws Section 504 of the Rehabilitation Act of 1973 applies
to federally funded programs The Americans with Disabilities Act (ADA) of 1990
and the ADA Amendments Act of 2008 provide equal rights to public accommodations
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Primary Federal Laws, con.
Entitlements to services IDEA of 1975 provides specified services by right
to eligible persons with disabilities; reauthorized in 2004
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ADA Structure
Prohibits discrimination in or by the following: Employment (Title I) State and local governments (Title II) Public accommodations (Title III) Public transportation (Title II[b] and
Title III[b]) Telecommunications (Title IV)
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ADA Definition of Disability
A physical or mental impairment that substantially limits one or more major life activities
When determining whether a disability is present, mitigating or corrective measures are not taken into account (e.g., medicine or prosthesis)
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Major Life Activities
Federal law defines major life activities to include the following: Walking Seeing Hearing Learning Taking care of oneself
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ADA Protects Several Groups
Individuals with disabilities as defined by ADA Individuals with a record of having disabilities Individuals who are regarded as having
disabilities Individuals or entities associated with people
with disabilities
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Direct Threat: A Narrow Exception
Rarely, people with disabilities who pose a significant risk to others may be excluded if risk cannot be eliminated by modifications Exclusion due to risk is an exceptional case; this is
not the typical child who bites!
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Public Accommodations
No public funding required; simply must be open to the public
Programs operated by religious organizations are exempt
Child care centers and family child care homes are covered
U.S. Territories must comply; Tribes cannot be sued by individuals, but can be sued by the Federal Government
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When Programs Are Required to Admit a Child With a Disability
Scenario: A parent requests to enroll his/her child with a
disability in a child care program The program should evaluate the individual
needs of the child with a disability The program should follow the evaluation
process to determine the child’s/program’s rights and responsibilities
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Does the child’s condition pose a direct threat?
Renovated area and new facilities (after 1/26/96) must be fully compliant with ADA Accessibility Guideline regulations
Is this a new facility or are major renovations being made?
Identify ways to reasonably accommodate the needs of the child.
This child cannot be reasonably accommodated at this point. Reassess when the direct threat can be eliminated
This child cannot be reasonably accommodated at this point. Reassess when the direct threat can be eliminated
Can the direct threat be eliminated through reasonable modifications?
Yes No
Do you need to reasonably modify policies, practices, and procedures to accommodate the child?
Do you need to remove any architectural barriers from an already existing facility to accommodate the child?
Will providing this impose an undue burden or fundamentally alter the nature of your program?
Will changing policies and practices fundamentally alter the nature of your program?
Will removing barriers be readily achievable?
The child can be reasonably accommodated. Admit the child into your program.
The child can be reasonably accommodated. Admit the child into your program.
This child does not need to be accepted by your program now. If reasonably possible, set long-term goals to enable your program to meet similar needs in the future.
This child does not need to be accepted by your program now. If reasonably possible, set long-term goals to enable your program to meet similar needs in the future.
No
Yes
No
Yes
No
Yes
No
No Yes
Yes
Yes
No Yes
No
Does the child need auxiliary aids and services to ensure effective communication?
Are there any reasonable alternatives to accommodate the child?
YesYes
No
What Must Providers Do?
Develop eligibility/admissions criteria that do not screen out or tend to screen out persons with disabilities
Make reasonable modifications to policies, practices, and procedures
Provide for equally effective communication Comply with physical access requirements
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Overarching Notion of Reasonable Accommodations
Examine program resources, tax credits and deductions (IRS Code Sections 44 and 190), and any available community resources
Provide individualized assessment What is reasonable is based on conditions at a
particular point in time, and this can change!
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Eligibility/Admissions
Must eliminate all eligibility criteria that explicitly state children with disabilities cannot be included
Must eliminate admissions criteria such as “toilet trained,” unless it is clear that this does not apply to children with disabilities
May impose legitimate safety requirements if necessary for safe operation
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Eligibility: Charges
Providers may not impose a surcharge on a person with a disability to cover the costs of measures that are required under ADA
States are not precluded from paying more under ADA (in other words, there may be a special needs subsidy rate)
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Modification of Policies, Practices, and Procedures
Providers are required to make reasonable modifications to policies, practices, and procedures unless the changes would fundamentally alter the nature of the program
If a modification would fundamentally alter the program, providers must determine if a reasonable alternative exists
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Examples
Changing snack time or nap time Eliminating a no-medication policy Doing blood-prick testing Providing visual cues of transitions Assisting with the positioning of a leg brace Allowing specialists to work with a child during
program hours
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What examples do you have?
Fundamental Alteration
Very limited exception Requires more than discomfort or
inconvenience Must “turn the program upside down” Insulin injection may be a fundamental
alteration
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Medication Administration/Health Procedures
Must administer medication if it is considered a reasonable accommodation (Alvarez v. Fountainhead, 55 F. Supp.2d.1048, N.D. Cal. 1999)
Several States require specialized training in medication administration (e.g., CO, CT, DE, NY, UT, WV, WY)
Settlements involving the U.S. Department of Justice (DOJ): Inhalers, Epi-Pens, and blood-prick testing
In CA: With conditions, insulin pumps, G-tube feeding, glucagon injections
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Effective Communication
Ensure the provision of effective communication Provide auxiliary aids and services
Not required if it would result in a fundamental alteration or undue burden (i.e., a significant difficulty or expense)
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Examples
Buying large print books Learning sign language with an infant or toddler Using picture cards
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Removing Barriers to Physical Access
Three situations Existing facilities Major alterations/renovations to facilities Newly constructed facilities
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Existing Facilities
Buildings built or renovated before 1993 undertake “readily achievable” architectural modifications
Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense
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Alterations
Alterations means changes that affect usability (i.e., remodeling and renovation)
If made after 1992, the facility shall be made to ensure that, to maximum extent feasible, altered portions are readily accessible and usable; effectively follow ADA accessibility guidelines, with some distinctions
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New Construction
Child care facilities built or major renovations made after January 26, 1993, must comply with the ADA Accessibility Guidelines
Guidelines for children’s environments and play areas have been developed under the authority of the Access Board; just recently adopted by the Department of Justice as regulations!
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Access Guidelines
Extensive information about access guidelines is available at www.access-board.gov
Information includes play area guide and FAQs
See also: www.ada.gov/regs2010/ADAregs2010.htm
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Enforcement
Law is enforced via private lawsuits or by the U.S. DOJ
DOJ can seek imposition of civil penalties up to $55,000 for the first violation
DOJ has regularly enforced in child care; a recent settlement occurred against Nobel Learning Communities for failing to enroll and/or provide reasonable accommodations to preschool children with autism spectrum disorder and a brain shunt.
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Title II(a) Provisions
Nondiscrimination in governmental/public body services, programs, and activities
Includes school district programs, park and recreation, etc.
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Distinctive Provisions
“Qualified” individual with a disability: Must meet essential eligibility requirements for receipt of services
Someone who poses a direct threat is not qualified
A public entity may offer separate or special programs, but individuals with disabilities cannot be denied access to standard programs
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Distinctive Provisions, con.
Must provide “program accessibility” unless to do so would create a fundamental alteration or undue financial or administrative burden; consider possible alternatives
Determination should be made by head of agency (with written findings)
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Distinctive Provisions, con.
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Must provide equally effective communication unless to do so would create a fundamental alteration or undue financial or administrative burden
Title II: Administration Requirements
Develop a grievance procedure Designate a compliance officer Conduct a self-evaluation Provide information about Title II requirements to
the public
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Enforced through the U.S. DOJ, Office of Civil Rights, Department of Health and Human Services, the U.S. Department of Education, or through Federal district court
Section 504
Covers Federal Government executive agencies Applies only to entities receiving Federal funds
(the Child and Adult Care Food Program, the Child Care and Development Fund, HS, Title I pre-k, Part B Section 619, etc.)
Similar protections to Title II of ADA No religious exemption States have no immunity from suit
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State Law Equivalents
Determine if your state law parallels or provides greater protection than ADA or Section 504.
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IDEA
Federal entitlement to services These are responsibilities of the states/school districts,
not private programs Part B deals with children 3 to 21 years of age
Section 619 of Part B deals with children 3 to 5 years of age
Part C deals with infants and toddlers, birth to age 3
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Part B
Children ages 3 to 5 who meet eligibility requirements are guaranteed a free appropriate public education (FAPE)
Services must be provided in the least restrictive environment (LRE), which includes child care settings
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Eligibility
Mental retardation
Hearing impairment, including deafness
Speech or language impairment
Visual impairment, including blindness
Serious emotional disturbance
Orthopedic impairment
Autism
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Eligibility, con.
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Traumatic brain injury Other health impairment Specific learning disability Deafness/blindness Multiple disabilities
… AND needs special education
Least Restrictive Environment (LRE)
Public agencies must ensure that to the maximum extent appropriate, children with disabilities . . . are educated with children who are nondisabled
Settings other than general education can only be used if the nature or severity of the disability is such that regular classes with the use of supplementary aids and services cannot be achieved satisfactorily
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Individualized Education Program (IEP)
Children found eligible under Part B are entitled to have an IEP developed by a team including parents and professionals
This specifies the child’s special education, related services, supplementary aids and services, etc.
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Individualized Education Program
Services will be provided to enable the child to participate with nondisabled children
An IEP must include an explanation of the extent, if any, to which the child will not participate with nondisabled children
In situations in which there is no public preschool, courts may find that the LRE is in a private preschool setting, especially where the IEP spells out a need for interaction with typically developing peers.
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Part C
Eligibility includes the following: Children with developmental delays Has a diagnosed physical or mental condition that
has a high probability of resulting in developmental delay;
At state option, children at risk of having substantial developmental delays
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Natural Environments
To the maximum extent appropriate to the needs of the child, early intervention services must be provided in natural environments
Includes a child’s home
“Community settings in which children without disabilities participate,” such as child care
Natural environments means settings that are natural or normal for the child’s age peers who have no disabilities
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Natural Environments (con.)
Settings other than natural environments can only be used if early intervention cannot be achieved satisfactorily for the infant or toddler
It is presumed that services will be offered in natural environments because if they are not, a justification must be provided.
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Individualized Family Services Plan (IFSP)
Children eligible under Part C are entitled to an IFSP developed by the IFSP team which includes parents and professionals
Early intervention services necessary to meet the outcomes are detailed
Each IFSP must include a statement of the natural environments in which the services will be provided and a justification of the extent, if any, to which the services will not be provided in a natural environment
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Resources
Access Board, www.access-board.gov
ADA homepage, U.S. DOJ, www.usdoj.gov/crt/ada/adahom1.htm; www.ada.gov/regs2010/ADAregs2010.htm
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Resources, con.
Center on the Social and Emotional Foundations for Early Learning, http://csefel.uiuc.edu
Child Care Plus+: The Center on Inclusion in Early Childhood, www.ccplus.org
Center for Inclusive Child Care, www.inclusivechildcare.org Education Law Center, www.edlawcenter.org National Early Childhood Technical Assistance Center,
www.nectac.org Special Quest, www.specialquest.org
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