Inclusion in Early Childhood Settings: Rights and Responsibilities/State Strategies INCLUSION INSTITUTE Presented by Abby Cohen, Child Care State Systems Specialist, Region IX May, 2012 This presentation provides information, not legal advice.
Agenda Background Laws, with an emphasis on ADA State Strategies through the child care system Resources
Background Who Are the Children We Are Talking About?
Who and How Many Children Are We Talking About? Sources: Regarding Who’s Minding the Kids? Child Care Arrangements: Spring 2010, Retrieved April 24,2012 from www.census.gov/newsroom/releases/archives/children/cb11-198.html; Findings from National Survey of Children with Special Health Care Needs, Retrieved April 25, 2012 from http://mchb.hrsa.gov/researchdata/mchirc/dataspeak/pastevent/january2012/files/jan2012transcript.pdf. 12.2 million children younger than the age of 5 (61%) are enrolled in some form of child care 15.1% or 11.2 million children have a special health care need More than one in five households have a child with a special health care need 4
Who and How Many Children Are We Talking About (con.)? 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; See also www.nectac.org/partc/partcdata.org One 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 In 2011, Part C served 2.82% percent of children younger than 3
Who and How Many Children Are We Talking About (con.)? Source: Center For Law and Social Policy. (2011, December). Head Start participants, programs, families, and staff in 2010. Retrieved April 26, 2012, fromwww.clasp.org/admin/site/publications/files/HSpreschool-PIR-2010-Fact-Sheet.pdf Head Start (HS), requires that at least 10 percent of children served be those with disabilities and the definition parallels IDEA The latest data show that in 2010, 12 percent of enrolled children had a disability, with about half diagnosed before entering HS and half diagnosed during the program year
Laws Relevant to Inclusionin Child Care Settings Federal and State Laws Impacting Inclusion
Background History of discrimination Attitudes toward people with disabilities Law both leads and follows Research recognizing benefits of inclusion
Distinguishing Types of Laws • 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
Primary Federal Laws, con. • Entitlements to services • IDEA of 1975 provides specified services by right to eligible persons with disabilities; reauthorized in 2004
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)
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)
Major Life Activities • Federal law defines major life activities to include the following: • Walking • Seeing • Hearing • Learning • Taking care of oneself
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 associatedwith people with disabilities
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!
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
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
Does the child’s condition pose a direct threat? 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 No Renovated area and new facilities must be fully compliant with ADA Accessibility Guideline regulations Identify ways to reasonably accommodate the needs of the child. Is this a new facility or are major renovations being made? Yes Yes No Do you need to reasonably modify policies, practices, and procedures to accommodate the child? Does the child need auxiliary aids and services to ensure effective communication? Do you need to remove any architectural barriers from an already existing facility to accommodate the child? No No Yes The child can be reasonably accommodated. Admit the child into your program. Yes Yes Will removing barriers be readily achievable? Yes Will changing policies and practices fundamentally alter the nature of your program? Will providing this impose an undue burden or fundamentally alter the nature of your program? No No Yes Yes No Yes Are there any reasonable alternatives to accommodate the child? 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
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
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!
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
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)
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
Examples What examples do you have? 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
Fundamental Alteration Very limited exception Requires more than discomfort or inconvenience Must “turn the program upside down” Insulin injection may be a fundamental alteration
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
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)
Examples Buying large print books Learning sign language with an infant or toddler Using picture cards
Removing Barriers to Physical Access • Three situations • Existing facilities • Major alterations/renovations to facilities • Newly constructed facilities
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
Examples Permanent or temporary ramps Grab bars in restrooms Wide doorways Furniture placement
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
New Construction Child care facilities built or major renovations made after January 26, 1993, must comply with the ADA Accessibility Guidelines (ADAAG) Guidelines for children’s environments and play areas were developed under the authority of the Access Board; they have now been adopted by the Department of Justice as regulations and incorporated into ADAAG On or after March 15, 2012 newly constructed or altered facilities must comply with all the requirements in the 2010 ADAAG standards
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
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
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
State Law Equivalents Determine if your state law parallels or provides greater protection than ADA or Section 504. Unlike other types of laws, the civil rights law providing the most protection prevails.
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
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
Eligibility Intellectual disability Hearing impairment, including deafness Speech or language impairment Visual impairment, including blindness Serious emotional disturbance Orthopedic impairment Autism
Eligibility, con. … AND needs special education Traumatic brain injury Other health impairment Specific learning disability Deafness/blindness Multiple disabilities
Eligibility con. At discretion of the state, a child experiencing developmental delay And needs special education
Least Restrictive Environment (LRE) Settings other than gen ed 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 is not successful.
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.
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
Natural Environments Includes a child’s home Settings that are natural or typical for a same-aged infant or toddler without a disability “Community settings in which children without disabilities participate,” such as child care It is presumed that services will be offered in natural environments because if they are not, a justification must be provided
Natural Environments con. Settings other than natural environments can only be used if early intervention cannot be achieved satisfactorily for the infant or toddler in a natural environment.
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