Understanding the Americans with Disabilities Act (ADA)

Girl holding child with Downs Syndrome

The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990, and is an important piece of American civil rights legislation. The ADA prohibits discrimination on the basis of disability in employment, state and local government, public accommodations (Title III), commercial facilities, transportation, and telecommunications.

Child care programs are considered "public accommodations" and are therefore subject to Title III regulations. Title III requires that child care programs, regardless of size or number of employees, not discriminate against persons with disabilities on the basis of their disability. Therefore, children with disabilities must be provided with equal opportunities to participate in all aspects of the child care program, including learning activities, services, outdoor spaces, etc. The only exception to this rule is when the program is under the direct management of a religious agency such as a church, parochial school, temple, mosque, etc.

Additional Information about ADA and Serving Children with Disabilities

Question and Answers - ADA and Child Care

 *Adapted from "American with Disabilities Act, Questions and Answers," a publication of the Equal Employment Opportunity Commission and the U.S. Department of Justice, Civil Rights Division.

The ADA says that child care centers cannot exclude children with disabilities from their programs unless it would require a fundamental alteration of the program or constitute an undue burden. What does this mean?

These terms are meant to clarify what is expected of child care programs when the parents of a child with a disability wants to enroll in your program. The Act asks programs to make reasonable modifications to their policies, practices or physical space to integrate children with disabilities into their programs, unless doing so would require a fundamental alteration or undue burden (e.g., adding an elevator to a building to accommodate a child with a wheel chair, etc.). What is considered a "reasonable modification" is based on the nature and cost of the necessary action and takes into account the resources available to the individual child care program and provider. It's important to remember that just because these terms are quite formal doesn't mean that the modifications and accommodations that are necessary to include a child with a disability in your program have to be similarly difficult. Thinking simply and creatively usually produces both functional and effective solutions.

How do I decide if a child with a disability belongs in my child care program?

The question isn't whether a child with a disability belongs in your program, for all children can and should be cared for in high quality child care programs. The question you should be asking is, "What information do I need to make sure that my program is prepared to support and meet the needs of the child?"  Providers cannot just assume that a child's disability or needs are too severe or complicated to be integrated successfully into their child care program. The provider needs to take the time to learn about the child, beginning with talking with the child's family to learn specific information about the child's abilities, interests, and possible challenges. It's also a good idea to research the specific disability, looking for characteristics and tips for how to support a child with the particular disability. Keep in mind that there is a lot of misinformation and stereotypes about what children with disabilities can and cannot do or how much assistance caring for them may require. This type of information is not helpful and can be detrimental to the child and family that is looking to enroll in your program.

Along with learning more about the child, it's equally important that providers assess their own program and program practices in order to gain a better understanding of how their program would or could support the child's needs. By keeping an open mind and using the knowledge you've gained about the child, you may be surprised at how easy it can be to come up with a list of supports or adaptations that you could make in order to include the child in your program.

A family who has a child with a disability wants to enroll in my program. The family told me that their child has an IEP and has a one-on-one aide when at school. That sounds like the child might have a lot of needs that I won't be able to care for.  Can I tell the family that I'm not willing to accept their child unless they provide an aide for them? 

No. Almost all children will need some form of individualized attention while in your care, especially when learning new skills. If a child with a disability needs one-on-one attention and can be integrated into your program without fundamentally altering it, then the child cannot be excluded.

Before moving on, there are some important things that should be understood about the need for a one-on-one aide or program assistant. The first is that the term "one-on-one aide" can, and often times does, bring to mind negative ideas involving things like challenging behaviors, safety concerns, etc. These are unfortunate stereotypes that have become associated with children who need one-on-one assistance or supervision and making decisions based on this type of information is short sighted and unproductive.

It's also important to understand that the skills that are required of a child while in a school setting can be quite different than those expected in a child care setting. For example, while in a small group or listening to a lesson, a child may need ongoing support from an adult in order to stay on task, but while in a large group or social activity, this type of supervision may be unnecessary or inappropriate. For this reason, it's always a good idea to ask questions about when and why a particular service is being provided. You may find that it is a non-issue for that child while they are attending your program.

Please keep in mind that there are a multitude of reasons for why a special education team may determine that a child could benefit from a particular service or support. Before jumping to conclusions, sit down and talk to the family about the child's needs, but also listen for all the things the child can do as well.

Can I charge a family more to care for their child who has a disability?

No. The ADA prohibits programs from imposing extra charges on individuals with disabilities to cover the cost of measures necessary to ensure non-discriminatory treatment (e.g., removing barriers, purchasing adaptive equipment or materials, providing individualized assistance, etc.). Such costs should be passed on to all participants like any other overhead cost.

There has been some confusion in regard to a subsidy program that can be accessed by families that qualify for Wisconsin Shares and also have a child with a disability. In the case of this program, it is up to the family to initiate the process by filling out the Wisconsin Shares Inclusion Rate Request. This is NOT a way for child care programs to charge a family a higher rate, but it is instead a higher subsidy amount given to the family to be used to assist the child care provider in supporting the child. The higher amount can be used to purchase equipment, to assist with adapting materials or activities, help pay for a program assistant, etc. The increased amount is determined on a case-by-case basis and not every family automatically qualifies.

A family wants to enroll their child in my program, but the child has diabetes. Do I have to admit them into my program? If I do, do I have to test their blood sugar levels? 

Children with diabetes can usually be integrated into a child care program without having to fundamentally alter it and therefore the child should not be excluded on that basis. In most instances, the parent's and child's physician will authorize and provide you with training on how to monitor the child's blood sugar levels. Like any new process, it may see uncomfortable at first, but monitoring a child's blood sugar is quite easy and should only take a minute or two.  The child's parent's are responsible for providing any testing equipment, as well as training on how to use that equipment.  The child may also have a restricted diet that is usually easily accommodated, but talking with the family will always make things easier. 

My insurance company says it will raise our rates if we accept children with disabilities. Do I still have to admit the child into my program?

Yes. The possibility of higher insurance rates is NOT a valid reason for excluding children with disabilities from a program. If your insurance company raises it's rates based on who you admit into your program, then the extra cost should be treated as an overhead expense and be divided equally among all paying customers. Also, it would be worthwhile to talk with your insurance company to get the specifics as to why your rates were increased. 

I have a child in my program that hits and bites when they get upset?  It's really frustrating and I don't know what to do.  Can I ask the family to find a different program? 

The first thing a provider should do in this case is discuss the situation honestly and sensitively with the family. When a child displays a challenging behavior, our first response is usually one of overreaction. It's best to step away from the situation after it has been resolved and look at it with a clear mind. There are many reasons why a child might hit or bite, so working with the family to figure this out will help to make the situation seem more manageable. Also, take the time to reach out to other colleagues or staff who may be able to help you brainstorm possible solutions to the problem. The ADA does not require providers to take any action that would pose a direct threat (or substantial risk of serious harm) to the health or safety of others. If all reasonable efforts have been made to help the child, then and only then should the discussion turn to more extreme solutions, such as having the child leave your program. The expulsion of a child is not to be taken lightly and should only be discussed after exhausting all other options.

Important: Programs should never make assumptions about how a child with a particular disability might act or behave based on past experiences they may have had caring for children with disabilities. Each situation must be considered individually.

If you have questions or concerns about a child's development (physical, social-emotional, or cognitive), these resources could help: