Title III of the ADA Can Require Private Child Care Providers to Provide Medically Related Accommodations

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We're treated to another guest post by Emily Harvey, an attorney at Disability Law Colorado. Emily is a passionate advocate and leaves no stone unturned in protecting the rights of people with disabilities.

Melissa is a single mom who works a steady job to take care of herself and her son, Max.  Max has been taking insulin for the past two years to help him manage his type I diabetes but he is only seven years old so he still needs some supervision.  Max recently started attending a new school and his teacher has sent home a note stating that Melissa will have to come to the school to help Max administer his insulin because the teacher will not do it.  Melissa cannot afford to take time off work to go to Max’s school every day and doesn’t know what to do.

Fortunately for Melissa and Max, the United States Department of Justice (DOJ) has taken the position that entities providing child care services that refuse to provide various medically related accommodations can be culpable for disability discrimination under the Americans with Disabilities Act (ADA).  The types of care the Department of Justice has addressed in Settlement Agreements include care related to diabetes management, administration of seizure medications, and other reasonable modifications to their policies.

In a 2010 Settlement Agreement between the United States of America (United States) and Rainbow River Child Development Center (Rainbow River), the school refused to provide proper diabetes care management to a student and required his parents to come to school to give him insulin at lunch and snack times.  Rainbow River also stated that the student would no longer be allowed to attend field trips with his peers because of his need for insulin.  The Settlement Agreement states that Rainbow River is subject to title III of the ADA as a public accommodation and may not discriminate against individuals on the basis of a disability, including diabetes.  The Settlement Agreement directed Rainbow River to administer insulin, glucagon, and other diabetes care to children under their care.  Furthermore, Rainbow River was directed to provide basic diabetes management training to staff members. 

Similarly, the United States entered into a Settlement Agreement with Alexandria Country Day School (Alexandria School) in 2011.  In this case, the school denied enrollment for a student with diabetes after her parents asked the school to assist her with her diabetes care, including supervising her in testing her blood glucose level and administering insulin via an insulin pump.  The Settlement Agreement states that Alexandria School is subject to title III of the ADA and cannot deny a student admission on the basis of diabetes.  In addition, Alexandria School had to make reasonable modifications including monitoring and administering insulin, adopting a diabetes management policy, and providing staff training in order to facilitate the diabetes management policy.  A similar Settlement Agreement was reached with a summer camp run by a hospital in 2014 as well.  Accordingly, entities providing child care services that are subject to title III of the ADA may not refuse to provide diabetes management care to children who attend their programs.

Diabetes management is not the only type of medical care that has been the subject of Settlement Agreements between the United States and entities providing child care services.  For example, Toddlers ‘N Tots, Inc. denied a student with epilepsy admission when it learned that the student would need diazepam rectal gel, a prescription anti-seizure medication, administered if he had a prolonged or acute repetitive seizure.  The Settlement Agreement pointed out that diazepam rectal gel was designed to be and routinely was administered by laypersons, so staff would not be making medical determinations that could post a direct threat to themselves or others.  Like the agreements involving insulin, this Settlement Agreement directed the school to develop a policy regarding the administration of diazepam rectal gel and to ensure that staff members were properly trained to do so.  

Thus, Max’s new school will need to work with Melissa to ensure they are able to help Max with his diabetes care.  Entities providing child care services should consider these Settlement Agreements in developing appropriate policies regarding medical care of the children attending their programs.

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