APPENDIX 1: Serving Children with Disabilities - Childcare and the ADA prepared by Attorney Mitchell Hagopian (November 2007) The Law The Americans with Disabilities Act (ADA) was enacted in 1990 as a means of ending discrimination against people based on disability. The ADA has three main "Titles" - sections - which prohibit discrimination based on disability in: Employment (Title I), Public Service (Title II), and Public Accommodations (Title III). Day Care Centers are considered places of "public accommodation" and are therefore subject to Title III of the ADA. & Applies to all programs regardless of number of children enrolled or staff employed - including family day care providers. & Does not apply to programs operated by religious organizations. Prohibited Practices ' "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a public accommodation." Prohibited Activities ' Denying a person the opportunity to participate in a program. For example, having a policy that you do not accept children with disabilities. ' Limiting a person's opportunity to participate. For example, having a policy that says children with disabilities cannot go on field trips. ' Creating a separate program for people with disabilities. For example, having all the children with disabilities routinely eat in a room away from the other children. Discrimination includes: ' Use of eligibility criteria that screen out or tend to screen out people with disabilities. For example, having a policy of not admitting children three years or older who are not toilet trained

Refusal to make reasonable modifications in policies, practices or procedures unless such modification would "fundamentally alter" the program offered. For example, refusing to cut food into small pieces for a child with a swallowing disorder because you do not cut food for other children. ' Failure to take necessary steps to ensure that no person with a disability is excluded because of the absence of auxiliary aids and services unless taking such steps would "fundamentally alter" the program offered or cause an "undue burden" on the provider. For example, failing to provide a magnifying glass for a child who has very low vision when the children are looking at books. ' Failure to remove architectural barriers unless such removal is not "readily achievable." For example, a home day care provider fails to place metal transition strips between hallways and rooms so as to make it possible for a wheelchair to go between rooms. Important terms ' "Fundamentally alter" is not defined in the law, but the use of the term fundamental implies that the standard is high. In Casey Martin v. PGA Tour the US Supreme Court found that allowing a golfer with a disability to use a golf cart during the PGA events did not fundamentally alter the golf competition. Example: One court has found that expecting staff to be alert and prepared to deal with an acute episode of asthma would not fundamentally alter the childcare center's program because staff are expected to be able to deal with unforeseen medical issues in other contexts. Example: Another court has found that requiring a center to provide one-to-one care to a child would fundamentally alter the center's program because the center provided group rather than individual child care. ' "Undue burden" means significant difficulty or expense. Example: One court has found that requiring a childcare center to hire a full-time personal care worker (at a weekly cost of $200) would be an undue burden on the center. Example: Another court has found that it was not unduly burdensome for a day care center to have its employees participate in a free training that will last less than an hour in order to recognize an acute episode of asthma. ' "Readily achievable" means easily accomplishable and able to be carried out without much difficulty or expense

Example: Asking a home day care provider to build a complicated permanent ramp system would probably not be readily achievable. ' "Direct threat." Centers are not required to enroll children who pose a "direct threat." the regulations define "direct threat" as "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 or services." Under Title I of the ADA (which relates to employment) the US Supreme Court has interpreted a similar definition of "direct threat" to also apply to the health and/or safety of others or themselves (Chevron USA, Inc. V. Echazabal, 2002). Example: One court has found that the presence of an inhaler in the day care center for a child with asthma did not pose a "direct threat" to the other children in the center because the inhaler could easily be secured when not in use by the asthmatic child. How it should work: Individualized Assessments Day care centers need to do individualized assessments of each child with a disability who either is enrolled or seeks to enroll. In the course of this individualized assessment the child's individual needs will be determined and any needed reasonable modifications to provider practices or policies will be explored. In the course of this individualized assessment it may become clear that modifications requested would fundamentally alter the program; in that case, alternative modifications that would not result in fundamental alteration should be explored. Likewise, the need for any auxiliary aids and services should be considered. They should be provided at the provider's expense unless they would cause an undue burden or result in a fundamental alteration of the provider's program. In order for a provider to consider a reasonable modification, the provider has to know that one is needed. In many cases, a child's disability will be apparent and/or the parent will disclose it immediately in order to obtain the most appropriate care for their child. Some parents may not know about or fully understand the ADA or the provider's obligation under it. If you believe that a child in your care or a child seeking to enroll has a disability, but the parent has not approached you about reasonable modifications, you should consider broaching the subject. Ideally, offering the parent the opportunity to engage in the individualized assessment will allow a smooth integration of the child into your program. In addition, making such an offer (especially if it is rejected) would be important should an allegation be made.

Fill in the blank (2 points)

"Teaching and learning are not the same." When an adult expects a child to do something right or correct and he does something else, the child is not wrong. This little child _________.

6. Fill in the blank (2 points)

"Teaching is not for many children" Teaching involves knowing the child's _______ and then knowing how to _____ him.

7. Fill in the blank (4 points) The author states that "an inclusive attitude is that children __________ when we are willing to __________.

8. Short Answer (4 points) The author refers to "negative behavior" as what we can say positively and from the child's perspective. We should consider our actions as having a message value." What message can a child's negative behavior send us? Give an example for each:

Crying Whining Bitting Throwing objects

9. Short Answer (1 point) Appendix 1: Services for Children with Disabilities - In Child Care and the ADA, the author explains what the responsibility of early childhood programs is to provide reasonable accommodations. Choose a word that was new to you and explain it. (If none of the words are new to you, choose the one you think is most important and explain w