The ADA and IDEA Basics: Inclusion of Children With Disabilities
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Inclusion
The ADA and IDEA Basics:
Inclusion of Children
With Disabilities
In a world of professional play specialists
by Mona Motwani
The Americans with Disabilities Act disabilities at a young age benefits all ■ People with a physical or mental
(ADA) is a federal civil rights law that children and promotes tolerance and impairment which substantially
was passed in 1990 with the aim of diversity. limits one or more major life activities
securing equal rights for persons with (when determining whether one has a
disabilities in the employment, housing, Definition of disability substantial limitation, one takes into
government, transportation, and public account any corrective measures they
accommodations contexts. The ADA Under the ADA, a child with a disability use, such as medication);
was passed in an effort to provide equal is one who has a physical or mental
impairment that substantially limits the
opportunities to people with disabilities. ■ People with a history of a physical or
child’s ability to care for herself or himself,
mental impairment which substan-
The ADA applies to almost all child care perform manual tasks, or engage in any
tially limits one or more major life
settings. Even before describing how other “major life activity,” such as walk-
activities (this may include, for
this law applies to child care, it is ing, seeing, hearing, speaking, breathing,
example, a child with a history of
important to understand why inclusion or learning, in an age-appropriate manner.
seizures);
of children with disabilities in the child However, a child that has a diagnosis of a
care setting is important. Child care set- condition is not automatically covered by
■ People who are regarded as having a
tings are like a microcosm of society; the ADA — each child requires an individ-
physical or mental impairment which
therefore, integrating typically develop- ualized assessment to determine if he/she
substantially limits one or more major
ing children with children with is substantially impaired in one or more
life activities (this may include, for
major life activities. For example, any of
example, a child who a provider
the following children might be considered
thinks has a disability because of
a child with a disability under the ADA:
Mona Motwani is a Staff Attorney at the Child Care Law certain behavior but who does not
a child with cerebral palsy, autism, a
Center in San Francisco. She works primarily on the actually have a disability); and/or
learning disorder, severe food allergies,
inclusion of children with disabilities in
the child care system. Mona is a 2005 diabetes, or an emotional or mental illness.
It is important to remember that each ■ People/entities associated with
graduate of University of California Hastings
College of Law, where she focused on civil child is unique, and determining whether people who have a physical or mental
rights and public interest law and was a a child with a disability is covered by the impairment which substantially limits
member of the Hastings International and Comparative Law
ADA is based on an individualized one or more major life activities (this
Review. Her past work experience during law school includes may include, for example, a child in
working on voting rights at the ACLU of Northern California,
assessment of that child.
care who has an HIV-positive sibling).
working on asylum cases for victims of gender persecution,
The ADA protects these four categories of Note that the person/entity does not
and working on human rights litigation at the United Nations
and in San Francisco. people from discrimination on the basis of have to be related to the person with
disability: the disability.
14 Exchange March/April 2007 Single copy reprint permission from Exchange, The Early Leaders' Magazine Since 1978
PO Box 3249, Redmond, WA 98073 • (800) 221-2864 • www.ChildCareExchange.com
Multiple use copy agreement available for educators by request.Inclusion
Child care providers almost never the case in child care parents to determine what accommo-
and the law settings);vi dations are necessary and whether they
are reasonable to the program. It should
The ADA applies to all places of public ■ In the case of changes in policies, be the goal of both the parents and the
accommodation, and in most cases, child practices, or procedures, the accom- provider to reach an informal resolution
care providers’ places of public accom- modation would fundamentally alter whenever possible.
modation. A child care provider, the nature of the program;vii
whether a family child care home or Examples of reasonable modifications
■ In the case of auxiliary aids and
center, is a place of public accommoda- might include, but are not limited to,
services, the accommodation would
tion because it holds itself out to the the following: rescheduling the snack
fundamentally alter the nature of
public as a business. However, religious- time of a child with diabetes, assisting
the program or pose an undue
ly affiliated child care facilities that are with a child’s leg brace, allowing a
burden (i.e., pose a significant
considered public accommodations are child’s one-on-one aide or physical
difficulty or expense);viii or
exempt from the requirements of the therapist on the child care site, and
ADA.i ■ In the case of the removal of barriers providing visual cues of transitions
in an existing program, the accommo- (e.g., large colored cards placed on stairs
The ADA requires that providers not to facilitate movement).
dations would require much diffi-
discriminate against people simply
culty or expense.ix
because they have disabilities. Instead,
Caring for children with
providers are to make a case-by-case
What is “reasonable” will vary, depend- special needs —
assessment of what the child with the
ing on the accommodations requested financial considerations
disability requires to be fully integrated
and the resources available to the pro-
into the program. Once they know what
gram. Generally speaking, less will be A common inquiry is whether a
is needed, they must assess whether
required of a family child care home provider can charge more for children
reasonable accommodations can be
which typically has fewer resources and with special needs because they require
made to allow this to happen.
staff than a center; but an individual- more individualized attention.
Much discussion among providers and ized assessment of the child’s needs and Providers cannot charge families of
others in the early childhood community the program’s ability to accommodate children with disabilities more than
centers on the following question: What always need to occur to determine what families of typically developing
is a reasonable accommodation? The is reasonable. children. However, when an accommo-
ADA sets out four primary types of dation is above and beyond a reason-
accommodations: The most important thing is to under- able accommodation, a provider may
take a process of dialogue with the impose an additional fee, but a legal
■ Admissions policies that do not
screen out or tend to screen out
persons with disabilities;ii The ADA prohibits unnecessary inquiries about a child’s disability. Questions to
help assess individual children — these are questions providers might ask the
■ Changes in policies, practices, or parents of all children:
procedures;iii
■ What type of care are parents expecting?
■ Provision of auxiliary aids and
■ What does the child like or enjoy (use your list of daily activities)?
services to ensure effective communi-
cation; andiv ■ Favorite toys, games, activities?
■ Removal of physical barriers in ■ How do parents adapt activities or equipment at home? Any special
existing program facilities.v considerations, accommodations, or assistance used at home?
Child care providers must make these ■ What skills has the child mastered?
accommodations unless: ■ What are the toileting skills of the child?
■ In the case of admissions policies, the NOTE: These are questions you might ask all children. These questions cannot
policy is necessary for safe operation be used to screen out a child.
of the program (note that this is
March/April 2007 Exchange 15Inclusion
consultation should be made with special needs rates are: California, child’s disability from the parents and
someone knowledgeable with the ADA Vermont, Nebraska, New York, and the children. Some parents will prefer
laws. Programs may not charge the Pennsylvania. Contact your subsidy that information about their child’s
parents of children with disabilities more agency for more information. disability continue to be kept confiden-
for providing reasonable accommoda- tial, while others may welcome the
tions. Programs are free to raise their fees When care can be refused opportunity to share with other families
to all families, use tax credits or deduc- the nature of their child’s disability.
tions available from the IRS, or seek Situations where care for a child can be When a family is open about a child’s
resources from outside their programs. refused on the basis of disability are disability, not only does the child
Programs may charge parents for the very limited. They include situations in benefit, but there are also many benefits
cost of providing additional, non-child which a child poses a direct threat — a and advantages for the staff and
care services, such as physical therapy, substantial risk of harm to others children in the center.
occupational therapy and the like. Keep (which must be documented by
in mind that in many instances, the objective professional evidence) or One of the best ways to respond to
reasonable accommodations which are where the accommodations needed families who inquire about another
necessary are not very costly and/or in would not be reasonable for the child’s disability is by giving them
the case of improving ratios, could program to provide. information about what quality care is
benefit all the children in care. all about. High quality programs will
For instance, take the example of a provide opportunities for parent
child with a disability who exhibits education, which in turn should include
There is a tax credit available for those
hitting behavior in care. The provider discussions of the benefits to all children
who incur expenses in order to comply
should not immediately expel the child of inclusive child care.
with the ADA. The Disabled Access Tax
because he or she exhibited this
Credit is a federal tax credit for the
behavior, but should look at the nature, IDEA
purchase of equipment and/or auxiliary
duration, and severity of the risk as
aids in which the primary purpose is to
well as the probability that the The Individuals with Disabilities
provide equal access to a business’s
potential injury will actually occur. Education Act (IDEA) guarantees
goods and services. An eligible small
children with disabilities the same
businessx may elect a nonrefundable tax It is also important to see if the access to education as children who do
credit equal to half of the expenditures provider can mitigate the behavior not have disabilities.xi The IDEA is an
for eligible accommodations that are with reasonable measures. Often, entitlement law that provides early
above $250. For instance, if a child care children with special needs who exhibit intervention and special education
home or center incurs cost in order to hitting behavior may have a hard time services to children, ages 0 - 21, who
accommodate a child with a disability, communicating by other means and are qualify for them.
these expenses can receive a tax credit using this as a communication tool. If
for up to half the amount spent above the provider works with a parent to IDEA’s services may be provided
$250. The maximum credit a business address the underlying communication through visits to the child care or
can elect for any tax year is $5,000 for issue, the hitting behavior itself might preschool setting by teachers, develop-
eligible expenditures of $10,250 or more. diminish. Again, the best course of mental specialists, and therapists. These
More information on the Disabled Access action for providers is to undertake a early intervention personnel can work
Tax Credit is available at dialogue with the parents when a child with the child care staff to systematically
www.ada.gov/taxpack.htm. care situation becomes difficult. embed the individualized goals for
children into the curriculum activities
Certain states have special needs rates or Confidentiality and the ADA and classroom routines.
differential rates for subsidized care.
This means that providers may secure Information about a child’s disability is The school or early intervention
additional funding when caring for confidential and should not be shared personnel consult and partner with the
children in subsidized care with special with others unless the provider has child care staff in order to enhance the
needs. The definitions of “children with consent from the parents of the child participation of children in common
special needs” are interpreted differently with the disability. Providers may be preschool activities, and may present
from state to state. This special needs rate able to have a conversation with them ways in which activities or environ-
is not billed to the parents but to the about how they would like to see the ments may be adapted to promote the
subsidy agency. Some states that have provider handle inquiries about their child’s participation and learning.
16 Exchange March/April 2007Inclusion
Who is eligible for IDEA’s early program.xiii All services under the meeting. This is done to assist with
intervention services? IDEA for children 3 - 21 are freexiv and the smooth transition of services.xxi
based on each child’s educational
Eligible children are those children who ■ The new regulations clarify that the
need,xv not on her disability.xvi Special
are 0 - 36 months old who reside in the public agency will provide a copy of
education means specially designed
state and who: the evaluation report and documenta-
instruction, such as adapting the content
tion of determination of eligibility to
or delivery of classroom instruction, at
■ Have a developmental delay in one the parent at no cost.xxii
no cost to the parents, to meet the
or more areas of development OR
unique needs of a child with a ■ The public agency providing services
disability.xvii Related services are
■ Have a diagnosed physical or mental to a child transitioning from Part C
transportation and developmental, (early intervention services) to Part B
condition which has a high probabil-
corrective, and other supportive services (special education services) is not
ity of resulting in developmental
that help a child with a disability benefit required to provide the Part C
delay
from special education. Related services, services that the child had been
for example, can include speech- receiving. When the family of this
Some states have opted for a third
language pathology services, child disagrees with the child’s pro-
eligibility category allowed by federal
psychological services, occupational and posed IEP and the family has lodged
law:
physical therapy, school health services, a complaint against a public agency
and parent counseling and training.xviii
■ Are at risk of having substantial (often the school district), then the
delays if early intervention services public agency must provide those
are not provided Reauthorized IDEA — special education and related services
2004 regulations relevant to that are not in dispute between the
Early Intervention services are services parent and the public agency.
child care
designed to meet the developmental
needs of an eligible child and the needs The IDEA was reauthorized in 2004, and Inclusive child care projects
of the family related to enhancing the a new set of regulations have been
child’s development. Related services, promulgated and are effective as of Inclusive child care projects are great
for example, can include audiological October 2006. These key changes affect resources for providers and families.
services, family training, counseling and child care: These projects are efforts to support
home visits, and respite services. parents and providers so that they can
■ The final regulations now include a provide quality, inclusive child care for
Who is eligible for IDEA’s provision requiring that all children children who have special needs. These
special education and related with disabilities receive the appropri- projects are often funded by private
services? ate supplementary aids and services donors, non-profit organizations, and
needed to participate in nonacademic state and local government funds. Two
School-age and preschool children (ages
settings, such as extracurricular activ- model child care inclusion projects
3 - 21 or children who will turn 3 during
ities, meals, and recess periods.xix include the Child Care Inclusion
the school year) are eligible who have:
Challenge Project (CCICP) in San
1) mental retardation, hearing impair- ■ The final regulations now include Francisco, California and Project Jericho
ments, speech or language impairments, Tourette syndrome in the definition in Albuquerque, New Mexico.
visual impairments, serious emotional of “other health impairments,” which
is a category that defines children eli- CCICP is a collaborative project
disturbance, orthopedic impairments,
gible for special education and between four county organizations
autism, traumatic brain injury, other
health impairments, and specific related services under Part B.xx whose mission is to make quality
inclusive child care the norm in San
learning disabilities, and
■ In the case of a child who previously Francisco, so that each child will have
2) who, by reason thereof, need special received early intervention services the opportunity to realize his or her full
education and related services.xii under Part C of the IDEA and has an potential. The project team members
IEP meeting, the IEP notice must meet on a weekly basis, and contact
Families and children can receive any include a statement that the parent each other more frequently, to discuss
service that is necessary to help a child may request a representative from cases and legal issues that arise in these
benefit from her special education Part C to be invited to the initial IEP settings. The project provides on-site
March/April 2007 Exchange 17Inclusion
consultation, technical assistance, and the Rehabilitation Act. services and activities set forth in
training on topics related to working §300.107, each public agency must
with children with disabilities. ii28 C.F.R. § 36.301 (2006). ensure that each child with a disability
participates with nondisabled children
Project Jericho works with the staff of iii28 C.F.R. § 36.302 (2006). in the extracurricular services and activ-
local Early Care and Education Centers ities to the maximum extent appropriate
to train and model best practice for the iv28 C.F.R. § 36.303 (2006). to the needs of that child. The public
inclusion of infants and children to age agency must ensure that each child with
five years who have a developmental v28 C.F.R. § 36.304 (2006). a disability has the supplementary aids
delay or who are at risk for a delay. Pro- and services determined by the child’s
ject Jericho works with families and the vi28 C.F.R. § 36.301 (2006). IEP Team to be appropriate and neces-
personnel of care centers for children sary for the child to participate in
who have special needs, strengthens the vii28 C.F.R. § 36.302 (2006). nonacademic settings. (Authority: 20
community’s understanding of children U.S.C. 1412(a)(5)).
and the family’s individual needs, and viii28 C.F.R. § 36.303 (2006).
assists with on going support and train- xx34 C.F.R. §300.8(c)(9) Other health
ing to child care providers, to assure ix28 C.F.R. § 36.304 (2006). impairment means having limited
that every child is able to grow, learn, strength, vitality, or alertness, including
and play equally regardless of abilities x Eligible small businesses: are defined a heightened alertness to environmental
or disabilities. as any person (the term includes corpo- stimuli, that results in limited alertness
rations) whose gross receipts for the with respect to the educational environ-
Child Care Inclusion Challenge Project
preceding tax year did not exceed $1 ment, that (i) is due to chronic or acute
(CCICP), San Francisco, CA. More
million, or whose full-time employees health problems such as asthma, atten-
information available at:
number fewer than 30. An employee is tion deficit disorder or attention deficit
www.supportforfamilies.org/
considered full-time if he or she works hyperactivity disorder, diabetes,
inclusionproject/index.html,
at least 30 hours a week for 20 or more epilepsy, a heart condition, hemophilia,
(415) 343-3334, or
calendar weeks in the tax year. lead poisoning, leukemia, nephritis,
info@inclusionproject.org xi20 U.S.C. § 1400 et. seq. rheumatic fever, sickle cell anemia, and
Project Jericho, Alta Mira Specialized Tourette syndrome;
Family Services, Inc. Albuquerque, xii20 U.S.C. § 1401(3); see also 34 C.F.R. and (ii) adversely affects a child’s
NM. More information available at: § 300.7(a)(1) (further specifying educational performance.
www.altamiranm.org/program.html, eligibility criteria for special education
(505) 262-0801, or including multiple handicapped). Resources
jdebonis@altamiranm.org.
xiii34 C.F.R. § 300.24(a). Child Care Law Center, San Francisco,
Including children with special needs xiv20 U.S.C. § 1401(8)(A). California. Call (415) 394-7144 if you
strengthens child care programs by
would like information about child care
offering a model of acceptance, integra- xv34 C.F.R. Part 300, App. A. issues. We are a national and California
tion, and equality for children. Children
child care support center for legal ser-
with disabilities as well as those who xvi34 C.F.R. § 300.300(a)(3)(ii). vices programs. We also provide coun-
are typically developing both reap
sel and advice over the telephone. The
benefits from this type of care. Early xvii34 C.F.R. § 300.26; 34 C.F.R. following are some of our legal services:
intervention and special education in
300.26(b)(3).
child care settings and the classroom are
• Answer legal questions regarding
critical to children’s development. xviii34 C.F.R. § 300.24. child care legal issues during our tele-
phone intake hours: Monday, Tues-
End notes xix34 C.F.R. §300.117 Nonacademic day, and Thursday from 12 p.m. to 3
iNote, however, if a religious entity is settings. In providing or arranging for p.m. (PST)
receiving any federal funds, it is the provision of nonacademic and • Publish many useful publications.
prohibited from discriminating on the extracurricular services and activities, Visit our web site at
basis of disability under Section 504 of including meals, recess periods, and the www.childcarelaw.org.
18 Exchange March/April 2007Inclusion
• Conduct trainings for parents,
teachers, community agencies, and
others regarding legal issues affecting
child care.
• Occasionally we provide legal
representation in impact cases.
Department of Justice Hotline (between
11 a.m. and 5 p.m. EST weekdays) at
(800) 514-0301 or (800) 514-0383 (TDD).
DOJ Disability web site:
www.usdoj.gov/disabilities.htm.
“Commonly Asked Questions About
Child Care and the ADA” at:
www.usdoj.gov/crt/ada/
childq%26a.htm.
Contact your local family resource
center. Internet search keywords: family
resource center (insert type of disabil-
ity).
March/April 2007 Exchange 19You can also read
