Child Care State Systems Specialist Network

Inclusion in Early Childhood Settings: Rights and Responsibilities/State Strategies

INCLUSION INSTITUTE

Presented by Abby Cohen, Child Care State Systems Specialist,Region IXMay, 2012

This presentation provides information, not legal advice.

AgendaBackgroundLaws, with an emphasis on ADAState Strategies through the child care systemResources

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Background

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Who Are the Children We Are Talking About?

Who and How Many Children Are We Talking About?

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

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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.

Who and How Many Children Are We Talking About (con.)?

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

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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

Who and How Many Children Are We Talking About (con.)?

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

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Source: Center For Law and Social Policy. (2011, December). Head Start participants, programs, families, and staff in 2010. Retrieved April 26, 2012, from www.clasp.org/admin/site/publications/files/HSpreschool-PIR-2010-Fact-Sheet.pdf

Laws Relevant to Inclusionin Child Care Settings

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Federal and State LawsImpacting Inclusion

Background

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History of discrimination Attitudes toward people with disabilities Law both leads and follows Research recognizing benefits of inclusion

Distinguishing Types of Laws

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Enactment of laws to protect civil rightsConcern with discrimination by public accommodationsConcern with discrimination by publicly funded entities

Enactment of laws to provide services by entitlement

Primary Federal LawsCivil 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

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Primary Federal Laws, con. Entitlements to services

IDEA of 1975 provides specified services by right to eligible persons with disabilities; reauthorized in 2004

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ADA StructureProhibits 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)

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ADA Definition of DisabilityA physical or mental impairment that substantially limits

one or more major life activitiesWhen determining whether a disability is present,

mitigating or corrective measures are not taken into account (e.g., medicine or prosthesis)

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Major Life ActivitiesFederal law defines major life activities to include the

following:WalkingSeeingHearingLearningTaking care of oneself

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ADA Protects Several GroupsIndividuals with disabilities as defined by ADAIndividuals with a record of having disabilitiesIndividuals who are regarded as having disabilitiesIndividuals or entities associated with people with

disabilities

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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 modificationsExclusion due to risk is an exceptional case; this is not the

typical child who bites!

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Public AccommodationsNo public funding required; simply must be open to the

publicPrograms operated by religious organizations are exemptChild care centers and family child care homes are

coveredU.S. Territories must comply; Tribes

cannot be sued by individuals, but can be sued by the Federal Government

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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 programThe program should evaluate the individual needs of the

child with a disabilityThe program should follow the evaluation process to

determine the child’s/program’s rights and responsibilities

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Does the child’s condition pose a direct threat?

Renovated area and new facilities must be fully compliant with ADA Accessibility Guideline regulations

Is this a new facility or are major renovations being made?

Identify ways to reasonably accommodate the needs of the child.

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

Do you need to reasonably modify policies, practices, and procedures to accommodate the child?

Do you need to remove any architectural barriers from an already existing facility to accommodate the child?

Will providing this impose an undue burden or fundamentally alter the nature of your program?

Will changing policies and practices fundamentally alter the nature of your program?

Will removing barriers be readily achievable?

The child can be reasonably accommodated. Admit the child into your program.

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

Yes

No

Yes

No

Yes

No

No Yes

Yes

Yes

No Yes

NoDoes the child need auxiliary aids and services to ensure effective communication?

Are there any reasonable alternatives to accommodate the child?

YesYes

No

What Must Providers Do? Develop eligibility/admissions criteria that do not screen

out or tend to screen out persons with disabilitiesMake reasonable modifications to policies, practices, and

proceduresProvide for equally effective communicationComply with physical access requirements

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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 assessmentWhat is reasonable is based on conditions at a particular

point in time, and this can change!

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Eligibility/AdmissionsMust eliminate all eligibility criteria that explicitly state

children with disabilities cannot be includedMust 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

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Eligibility: ChargesProviders 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)

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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

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ExamplesChanging snack time or nap timeEliminating a no-medication policyDoing blood-prick testingProviding visual cues of transitionsAssisting with the positioning of a leg braceAllowing specialists to work with a child during program

hours

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What examples do you have?

Fundamental Alteration Very limited exception Requires more than discomfort or inconvenience Must “turn the program upside down” Insulin injection may be a fundamental alteration

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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

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Effective Communication Ensure the provision of effective communication

Provide auxiliary aids and servicesNot required if it would result in a fundamental

alteration or undue burden (i.e., a significant difficulty or expense)

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ExamplesBuying large print booksLearning sign language with an infant or toddlerUsing picture cards

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Removing Barriers to Physical AccessThree situations

Existing facilitiesMajor alterations/renovations to facilitiesNewly constructed facilities

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Existing FacilitiesBuildings built or renovated before 1993 undertake

“readily achievable” architectural modificationsReadily achievable means easily accomplishable and

able to be carried out without much difficulty or expense

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Examples

Permanent or temporary ramps Grab bars in restrooms Wide doorways Furniture placement

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AlterationsAlterations 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

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New ConstructionChild 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

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Access GuidelinesExtensive information about access guidelines is

available at www.access-board.gov

Information includes play area guide and FAQsSee also: www.ada.gov/regs2010/ADAregs2010.htm

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EnforcementLaw is enforced via private lawsuits or by the U.S. DOJDOJ can seek imposition of civil penalties up to $55,000

for the first violation

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Section 504Covers Federal Government executive agenciesApplies 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 ADANo religious exemptionStates have no immunity from suit

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State Law EquivalentsDetermine 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.

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IDEAFederal entitlement to servicesThese are responsibilities of the states/school districts, not

private programsPart B deals with children 3 to 21 years of age

Section 619 of Part B deals with children 3 to 5 years of agePart C deals with infants and toddlers, birth to age 3

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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

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EligibilityIntellectual disabilityHearing impairment, including deafnessSpeech or language impairmentVisual impairment, including blindnessSerious emotional disturbanceOrthopedic impairmentAutism

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Traumatic brain injury Other health impairment Specific learning disability Deafness/blindness Multiple disabilities

Eligibility, con.

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… AND needs special education

Eligibility con.At discretion of the state, a child experiencing

developmental delayAnd needs special education

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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.

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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.

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Part C Eligibility includes the following:

Children with developmental delaysHas 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

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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

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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.

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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

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Inclusion: State/Territorial Strategies

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Strategies to Promote Inclusion: Overarching Systems Review

Reports are sometimes issued, such as in New Mexico, with cross-systems recommendations to promote inclusion in child care

Almost half the states indicated that they were planning on working on issues related to children with special needs as part of their Early Learning Advisory Councils: are you seeing activity?

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Overarching Systems Review

Has your state undertaken a review?If so, what did it find? What did it recommend to

improve inclusion?Have the recommendations been implemented?

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Strategies to Promote Inclusion: Licensing

Each State/Territory determines what programs are licensed and what conditions apply

Review of licensing statute and regulationsAre there barriers to inclusion?Are there affirmative provisions to promote inclusion?

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Strategies to Promote Inclusion Through Licensing

Eliminate barriers from licensing regulations, balancing access and safetyIdentify specialized regulations that may or may not

be warrantedEliminate automatic staffing increases regardless of

individualized assessments

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Affirmative Licensing Regulations

Promote affirmative provisions in licensing regulationsScreening children at enrollment to help with

ChildFindIf a child has an individualized education plan (IEP) or

an individual family services plan (IFSP), having a provider, with consent, involved with it

Requiring that operators permit specialists to enter the facility to provide services and instruct personnel (WV)

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Affirmative Licensing Regulations, con.

Ensuring facility accessibility (MA, NM)Requiring medication administration training

(CO, NY); allowing providers to administer medications (CA)

Including inclusion training as part of licensing requirements (IN)

Identifying the need for and referral for developmental screening and diagnostic assessment (NV)

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Licensing in your stateHave certain licensing provisions been found to be

barriers to inclusion?Have you instituted any affirmative provisions? What are

they?

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Strategies to Promote Inclusion:QRS/QRIS

Quality rating systems/quality rating and improvement systems (QRS/QRIS) are a growing trend across States

Several States have chosen to incorporate standards that relate to the inclusion of children with special needs

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QRS/QRIS Example:New Hampshire

New Hampshire requires that children and families of all abilities be welcomed, that programs be modified, and that reasonable accommodations be made to maintain children with special needs in programs

Documentation includes inclusive policies appearing in handbooks, promotional materials, and/or other written parent communications

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QRS/QRIS Example:Delaware

2 Stars: All staff are trained on inclusion best practices/written inclusion policy

3 Stars: Program requests copies of IEP, IFSP, or intervention plan; assessment results with attempt to implement at least one part of plan

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QRS/QRIS Example:Delaware, con.

4 Stars: Program uses process to document and implement activities/instruction that helps child reach goals in intervention plan; with family’s permission, attempts to work with service providers who are working with children in the program

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QRS/QRIS Example:Ohio

Step Two: All children except school age receive a developmental screening within 60 days of enrollment; referrals, if needed, are completed within 90 days

Step Three: Same as for Step Two

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QRS/QRIS Example: Indiana

At level three, “Plans and environmental accommodations for children with special needs are evident”

Indicators include looking at written plans, space, adaptation of materials, and promotion of age appropriate self-help, and answering questions about differences in a matter-of-fact way

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QRS Example:Pennsylvania

2 Stars: Provider requests copies of IEP or IFSP . . .completed by professionals to inform classroom practice

4 Stars: . . .provider in conjunction with parents and service providers . . .implements activities appropriate to meet IEP or IFSP goals and/or special needs plans and objectives

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QRS Example:Pennsylvania, con.

2 Stars: All staff have at least 2 hours of professional development on child observation, inclusive practices and/or ERS

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QRS Example:Pennsylvania, con.

In addition to the community resources/special needs section, there is a section about transition to other classrooms and educational settings, which while not disability specific, clearly encompasses transitions for children with disabilities

04/22/2023

QRS/inclusion funding example

Child Care State Systems Specialist Network 67

Massachusetts is proposing requiring programs that receive grants to promote inclusive preschool environments to reach Level 2 by January 2013

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Strategies to Promote Inclusion: Subsidy System

Definition of who is a special needs child under CCDF is given to the States/Territories; some define it broadly and do not limit the definition to IDEA’s definition

Use of optional authority under CCDF to define children with disabilities eligible for care older than 13 but younger than 19

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Strategies to Promote Inclusion: Subsidy System, con.

Taking into account increased costs of caring for children with disabilities in making eligibility determinations based on income:

“The income spent on any regular, ongoing cost that is specific to a child’s disability is excluded from definition of income” (Iowa)

“Recurring expenses for medical care or prescribed adaptive equipment for special needs children shall be subtracted from gross family income” (Maine)

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Strategies to Promote Inclusion: Subsidy System, con.

Differing income standardsFamilies with a child with special needs are subsidized

when gross monthly income is at or below 85 percent, continuing until 100 percent of State Median Income (SMI)

Other families are subsidized when gross monthly income is at or below 50 percent, continuing until 85 percent of SMI (e.g., in Massachusetts)

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Strategies to Promote Inclusion: Subsidy System, con.

Some guarantee subsidy eligibility; some give priority over other CCDF eligible families

Some provide full-time care whether or not parents are available to provide care (e.g., in Massachusetts; however it appears as of July 1, 2012, parents must establish at least part-time service need)

A number of States have special needs rates through the subsidy program (which may be flat rate increases, percentage increases, or individual documentation)

There is a lack of information about utilization and effectiveness of each method and how methods compare

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Subsidy Approaches

Is income counted in any different way for families with children with disabilities (CWD)?

Is eligibility any different for families who have children with disabilities?

Do providers receive differential reimbursement? How is that determined? If available, how well utilized?

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Strategies to Promote Inclusion:Use of Quality Money

Increased use of screening and referrals in child care to early intervention/special education and health, including mental health—requires training and knowledge of systems

Enhanced child care resource and referral services (MD)

Inclusion specialists (MO, IN, NM, GA)

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Strategies to Promote Inclusion:Quality Activities

Loans of special adaptive equipment or assistive technology

Grants for special adaptive equipment or assistive technology

Loans or grants for facility accessibility

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Strategies to Promote Inclusion: Quality Money, Professional Development

Integrating training about inclusion into all early care and education professional development (revising curricula)

Providing supports/initiatives to enable the care of children with challenging behaviors

Providing targeted resources for training on inclusion

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Financing Sources Consideration of Early Learning Challenge Grants plans:

are issues of inclusion incorporated?

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Resources

Access Board, www.access-board.gov ADA homepage, U.S. Department of Justice,

www.usdoj.gov/crt/ada/adahom1.htm Center on the Social and Emotional

Foundations for Early Learning, http://csefel.uiuc.edu

Division of Early Childhood (DEC), Council for Exceptional Children, www.dec-sped.org

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Resources, con.

Head Start Center for Inclusion, http://depts.washington.edu/hscenter

National Early Childhood Technical Assistance Center, www.nectac.org

National Professional Development Center on Autism Spectrum Disorders, www.fpg.unc.edu/~autismpdC/

National Professional Development Center on Inclusion, http://community.fpg.unc.edu/npdci

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Resources, con.National Technical Assistance Center for Children’s

Mental Health, http://gucchd.georgetown.edu/programs/ta_center/

Office of Special Education (OSEP) Department of Education, www.ed.gov/about/offices/list/osers/osep

SpecialQuest, www.specialquest.org; see especially for programs, www.specialquest.org/sqtm/supp/inc_plan_chklist_center.pdf

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Resources, con.

Technical Assistance Center on Social Emotional Intervention for Young Children, www.challengingbehavior.org

Thank You

Child Care State Systems Specialist Network

CCSSSN does not endorse any non-Federal organization, publication, or resource.

Phone: 877-296-2401Email: OCCTANetwork@icfi.com