The ADA and Child Care

At the Rocky Mountain ADA Center , we frequently receive questions about how the Americans with Disabilities Act ( ADA ) applies to childcare centers.  Here are some commonly asked questions on this subject.

Q.   Does the ADA apply to childcare centers?

A: Yes. Privately run child care centers - like other public accommodations such as private schools, recreation centers, restaurants, hotels, movie theaters, and banks - must comply with title III of the ADA . Childcare services provided by government agencies, such as Head Start, summer programs, and extended school day programs, must comply with title II of the ADA . Both titles apply to a childcare center's interactions with the children, parents, guardians, and potential customers that it serves.

Q.   Which childcare centers are covered by title III?

A: Almost all childcare providers, regardless of size or number of employees, must comply with title III of the ADA . Even small, home-based centers that may not have to follow some State laws are covered by title III.

The exception is childcare centers that are actually run by religious entities such as churches, mosques, or synagogues. Activities controlled by religious organizations are not covered by title III.

Private child care centers that are operating on the premises of a religious organization, however, are generally not exempt from title III. Where such areas are leased by a childcare program not controlled or operated by the religious organization, title III applies to the childcare program but not the religious organization. For example, if a private childcare program is operated out of a church, pays rent to the church, and has no other connection to the church, the program has to comply with title III but the church does not.

Q.   What are the basic requirements of title III?

A: The ADA requires that child care providers not discriminate against persons with disabilities on the basis of disability, that is, that they provide children and parents with disabilities with an equal opportunity to participate in the child care center's programs and services. Specifically:

Centers cannot exclude children with disabilities from their programs unless their presence would pose a direct threat to the health or safety of others or require a fundamental alteration of the program.

Centers have to make reasonable modifications to their policies and practices to integrate children, parents, and guardians with disabilities into their programs unless doing so would constitute a fundamental alteration .

Centers must provide appropriate auxiliary aids and services needed for effective communication with children or adults with disabilities, when doing so would not constitute an undue burden .

Centers must generally make their facilities accessible to persons with disabilities. Existing facilities are subject to the readily achievable standard for barrier removal, while newly constructed facilities and any altered portions of existing facilities must be fully accessible .

Q.   One of the children in a local center has parents who are deaf.  The director needs to have a long discussion with them about their child's behavior and development. Does the center have to provide a sign language interpreter for the meeting?

A: It depends. Childcare centers must provide effective communication to the customers they serve, including parents and guardians with disabilities, unless doing so poses an undue burden. The person with a disability should be consulted about what types of auxiliary aids and services will be necessary in a particular context, given the complexity, duration, and nature of the communication, as well as the person's communication skills and history. Different types of auxiliary aids and services may be required for lengthy parent-teacher conferences than will normally be required for the types of incidental day-to-day communication that take place when children are dropped off or picked up from child care. As with other actions required by the ADA , providers cannot impose the cost of a qualified sign language interpreter or other auxiliary aid or service on the parent or guardian.

A particular auxiliary aid or service is not required by title III if it would pose an undue burden , that is, a significant difficulty or expense, relative to the center or parent company's resources.

Q.   Can the day care charge the parents for special services provided to a child with a disability, provided that the charges are reasonable?

A: It depends. If the service is required by the ADA , you cannot impose a surcharge for it. It is only if you go beyond what is required by law that you can charge for those services. For instance, if a child requires complicated medical procedures that can only be done by licensed medical personnel, and the center does not normally have such personnel on staff, the center would not be required to provide the medical services under the ADA . If the center chooses to go beyond its legal obligation and provide the services, it may charge the parents or guardians accordingly. On the other hand, if a center is asked to do simple procedures that are required by the ADA - such as finger-prick blood glucose tests for children with diabetes  - it cannot charge the parents extra for those services. To help offset the costs of actions or services that are required by the ADA, including but not limited to architectural barrier removal, providing sign language interpreters, or purchasing adaptive equipment, some tax credits and deductions may be available.

Q. Are there tax credits or deductions available to help offset the costs associated with complying with the ADA ?

A: To assist businesses in complying with the ADA , Section 44 of the IRS Code allows a tax credit for small businesses and Section 190 of the IRS Code allows a tax deduction for all businesses.

The tax credit is available to businesses that have total revenues of $1,000,000 or less in the previous tax year or 30 or fewer full-time employees. This credit can cover 50% of the eligible access expenditures in a year up to $10,250 (maximum credit of $5,000). The tax credit can be used to offset the cost of complying with the ADA, including, but not limited to, undertaking barrier removal and alterations to improve accessibility; provide sign language interpreters; and for purchasing certain adaptive equipment.

The tax deduction is available to all businesses with a maximum deduction of $15,000 per year. The tax deduction can be claimed for expenses incurred in barrier removal and alterations.

Q. What steps can I take if the provider refuses to provide effective communication for my deaf/hh child? 

A . The ADA establishes two avenues for enforcement of the requirements of title III:

1) An individual can pursue a private suit if they believe they are being subjected to discrimination.

2) An individual can file a formal complaint with the Department of Justice (DOJ).   Whenever the DOJ has reasonable cause to believe that there is a pattern or practice of discrimination, or there is discrimination that raises an issue of general public importance, the Department will investigate complaints and conduct compliance reviews of covered entities.

An individual may also file a complaint with the DOJ and request mediation on the outside of the envelope.  The mediation process may bring about a quicker resolution.

Q. Do State or local civil rights agencies have any role in enforcing title III?

A. There is no provision for State or local civil rights agencies to directly enforce title III of the ADA . They can, however, enforce State or local laws that incorporate the standards of the ADA , or they can set up alternative dispute resolution mechanisms.

Q. How do I file a formal complaint with the DOJ?

A. Complaints may be sent to the following address:

U.S. Department of Justice
950 Pennsylvania Avenue, NW
Civil Rights Division - Disability Rights
New York Avenue Building , Room 4023
Washington , D.C.   20530

If you desire to mediate, remember to write "Mediation" on the outside of the envelope. 

In your complaint, be sure to include all details of the situation, such as: your name, address, phone number, and the name of the party discriminated against; name, address, phone number of the business that you feel has discriminated; a description, date or dates, of the acts of discrimination, and the name or names of the individuals who you believe discriminated; other information you believe necessary to support your complaint.  Send copies of relevant documents, and not the original documents.

A Title III Complaint Form is available on the DOJ website at http://www.usdoj.gov/crt/ada/t3compfm.htm, or you can order a copy from the Rocky Mountain ADA Center at 800-949-4232 (V, TTY).

Q. How can the Rocky Mountain ADA Center help?

A. While the ADA Center is not an enforcing agency, the Center may be able to provide you with additional information to help you in your request for effective communication for your child.  We have access to documentation that you can share with the provider highlighting the responsibilities they have to provide effective communication.

For more information on the ADA , contact our office by phone at 800-949-4232 (V, TTY), or visit our website at www.adainformation.org .  We look forward to serving you!