Administering medication and guidance on compliance with the Americans with
Medication Administration
Disabilities Act (ADA)
GUIDANCE ON COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT (ADA) AND REGULATIONS OF THE NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES (OCFS) ON THE ADMINISTRATION OF MEDICATIONS IN CHILD CARE PROGRAMS
Summary – Child care providers that are considering not administering medications to children in their programs or that have selected not to administer medications in their day care programs, still must comply with the ADA. There may be circumstances where compliance with the ADA may require a child care provider to administer medications to a child with a disability that is either currently enrolled in the program or who is currently beginning the enrollment process for the program. Under those circumstances, the program must be certified to administer medications in accordance the OCFS regulations.
This document provides guidance on the interaction of OCFS child day care regulations and the ADA, with particular regard to the statutory and regulatory provisions that address the administration of medications to children in day care programs.
Any questions you may have on this topic may be addressed to your licensing representative at the appropriate OCFS Bureau of Early Childhood Services regional office or the United States Department of Justice, which is the federal agency with primary responsibility for enforcement of the ADA, at the website www.ada.gov
Regulatory Provisions:
The regulations for school age child care programs and day care centers include a regulatory provision, which states the following:
"Nothing in this section shall be deemed to require any provider to administer any medication, treatment, or other remedy except to the extent that such medication, treatment or remedy is required under the provisions of the Americans with Disabilities Act."
[18 NYCRR Section 414.11(g)(2) and 418-1.11(j)(2)]
The regulations for family and group family day care homes and small day care centers contain an almost identical provision:
"Nothing in this section shall be deemed to require any caregiver to administer any medication, treatment, or other remedy except to the extent that such medication, treatment or remedy is required under the provisions of the Americans with Disabilities Act."
[18 NYCRR Sections 416.11(j)(2), 417.11(j)(2) and 418-2.11(i)(2)]
Thus, while the regulations generally offer day care providers the option to choose to not administer medications, treatments or other remedies, that option is qualified. Where the ADA would require that a provider administer medications, treatment or some other remedy, it is possible that a provider might be required to become certified, or have staff become certified, in the administration of medications and prepare a health care plan that provides for the administration of medications.
Compliance with the ADA
What Is the Public Accommodations Provision of the ADA?
The basic requirement of the ADA is that places of public accommodation may not discriminate against children with disabilities unless the presence of such children would: (1) pose a direct threat to the health or safety of others; or (2) require a fundamental alteration in the nature of the program. Programs that are subject to the ADA must make reasonable accommodations to enable children with disabilities to participate in the program. In this context, "reasonable accommodations" are modifications to policies and practices that do not constitute a fundamental alteration of the program.
Determining exactly what constitutes a reasonable accommodation and at what point the accommodation becomes a fundamental alteration of the program must be evaluated and resolved on a case-by-case basis. There are, however, some general principles and standards that apply to all ADA situations.
Applicability of ADA to Child Care Programs
All regulated day care programs, including those operated out of a family home or residence, fall within the ADA's definition of a public accommodation except for day care programs operated by religious entities. However, what will constitute a reasonable accommodation may vary depending on the circumstances of each specific situation.
Individualized Assessments
When a parent seeks admission of a child with disabilities to a day care program or wishes to keep a child with disabilities in a day care program, the day care provider must make an individualized assessment of the needs of that child and determine whether the child can be accommodated in the day care program without making fundamental alterations in the program. Day care programs cannot establish uniform policies that they will not accept children with disabilities or even that they will not accept children with certain specified disabilities; each situation must be individually assessed to review all the various factors before a decision on whether or not to accept the child with a disability into the program is made.
Fundamental Alteration
To determine whether accepting a child with a disability will constitute a fundamental alteration of the program, the program must analyze the nature and cost of any changes to the program's policies and practices that would be necessary to accommodate the child.
Cost, although not the only factor, is one factor to consider in determining whether accommodating a child with a disability would constitute a fundamental alteration of the program.
If the assessment is that the child cannot be accommodated without a fundamental alteration of the program, the provider should discuss the matter with the parent and explain the rationale for being unable to accept the child. Providers and parents may consult with OCFS Bureau of Early Childhood Services regional office licensing staff on these matters.
Direct Threats
The ADA does not require that a day care program accept a child who poses a direct threat to the health or safety of others into the program. In addition, if the public accommodation needed to accept the child with a disability into the program poses a significant risk to health and safety of others and there is no other reasonable accommodation that could be made to eliminate that health and safety risk, then the program does not have to accept the child with a disability into the program. The determination of whether a particular child poses a direct threat must be based on the individualized assessment; a program may not categorize certain types of disabilities as automatically constituting a direct threat to others. Conditions posing a direct threat may include diseases that are actively infectious or that are communicable through the sort of incidental contact that would commonly occur in day care settings. Providers may ask parents or medical professionals for relevant information where the child may have such a condition in order to properly assess whether the condition poses a direct threat to others.
Children with HIV or AIDS cannot be excluded on the basis that they pose a direct threat to others. HIV and AIDS cannot be easily transmitted through the kinds of incidental contact that commonly occur in day care programs and so do not pose a direct threat to the health or safety of others.
Administration of Medications
The ADA may require that a day care program give medications to children with a disability in some circumstances in order to make reasonable accommodations to enable such children to attend the program. The practical ramification of the ADA in New York is that day care providers should be prepared to obtain, in a timely fashion, the required training in order to administer at least certain basic types of medications if required by a child with a disability where such administration is a reasonable accommodation necessary to enable the child to attend the day care program. If a provider would be in violation of the ADA by refusing to administer medication to a child with a disability and either has such a child already in the program or a parent seeks to enroll such a child, the provider must take steps in a timely manner to become certified to administer medications in accordance with OCFS regulations, modify its health care plan with the approval of a health care consultant to provide for the administration of medications, and administer any medication required by the ADA. If it is determined that a provider must enroll a child with a disability and must administer medications to that child to be in compliance with the ADA, then the provider must enroll that child within the same time frame the provider would enroll a child without a disability. If there is a waiting list for all children and such a child with a disability seeks to enroll, the provider must begin to take the necessary steps to become certified to administer medications so the provider can administer medications as soon as the child is enrolled in the program. A provider may not place a child with a disability on a waiting list simply because the child has a disability.
A provider also may not advise a parent that the provider must wait to enroll the child with a disability simply because the provider has not completed the process to be certified to administer medications. The provider must enroll the child with a disability as soon as a placement for the child is open. This may force a provider to accept a child with a disability into the program without being legally able to administer the child's medication under New York State law. If this situation occurs, the provider and the parent or guardian of the child with a disability must meet and put together a written plan of how the child's medication will be provided while the provider becomes certified to administer medications. In no way does this plan allow the provider or any other individual working for or with the provider, who is not already legally able to administer medications to the child, to administer medications to the child with a disability while the provider pursues certification to administer medications.
When developing the necessary plan to maintain a minimal capacity to meet the needs of any child with a disability currently or potentially served by the program, the number of staff certified to administer medications need only reflect the ability to respond to these limited medication needs. However, the staffing does need to be sufficient to cover all shifts of care offered by the program where medications would have to be administered.
The Office recommends that providers who have opted not to administer medications have a detailed plan in place on how they plan to comply with the ADA should the situation arise where they must administer medications to comply with the ADA. That plan should include familiarity with the steps necessary to become certified to administer medications and who the provider would contact to begin the process to become certified to administer medications. The plan should also include some ideas on how a child with a disability, if enrolled before the provider is certified to administer medications, will receive medications during the time the provider becomes certified to administer medications.
If a provider is or becomes certified to administer medications so that it may administer medications to a child with a disability in the program in order to comply with the ADA, the program may decide whether it will or won't also administer medications to children in the program who do not have a disability.
Finally, all day care programs that already serve a child with a disability or that have a child with a disability seek enrollment in the program should be certified to administer medications in New York State in the manner specified in the OCFS regulations.
Conclusion
Attached is a list from DOJ of commonly asked questions addressing some of the issues discussed above and providing guidance on other issues concerning the ADA. Providers with questions about the ADA are encouraged to review this material for additional guidance. Providers with specific ADA issues should contact their OCFS Bureau of Early Childhood Services regional office for additional consultation or assistance. Providers may also contact DOJ about these issues at 1-800-514-0301.
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