LawRefs Customized Legal Information
Attorney Renee C. Walsh

Child Care Providers and Accommodation of Disabled Children

Question:

What are the rights of a child when a child care provider refuses attendance to a child recently diagnosed with Type I Diabetes? The provider is unwilling to accommodate the child. I understand federal law in regards to daycares, preschools and school accommodations but what about a child care center that accepts money from the state. Would it be subject to federal law?

The Michigan Disabilities Act requires the centers to provide reasonable accommodations for disabled children. The Office of Civil Rights has ruled that diabetes care tasks are not unreasonable, yet in the settlement with KinderCare, insulin was not required to be provided as a reasonable accommodation. The failure to provide insulin would render the accommodation useless in that these children must have insulin to live. Am I to understand that there is not access to child care for a child with Type I Diabetes unless it is run by the school?Answer:

A child care center is subject to both state and federal law. A state can provide greater rights to its citizens but cannot limit the rights provided to them under the federal law. A state cannot limit rights provided under the federal law an must follow the federal law mandate at the minimum with regard to rights provided to citizens. The child care provider cannot deny services to this child and most provide them with reasonable accommodations.

Keep in mind that the fact that insulin was not provided for in the settlement agreement makes no difference as to what is binding law. The settlement agreement was just that an agreement between the parties to settle the matter and is not caselaw establishing precedent to be followed.

Under the Michigan Public Health Code, only a physician can order the administration of medication. Upon the physician’s order, none other than the parent, a licensed nurse or someone acting under nursing supervision, may administer the medication ordered by the physician. Insulin is a medication. To do so would constitute the practice of nursing.

Under Michigan Compiled Law, MCL 333.17211, a person shall not engage in the practice of nursing unless licensed. MCL 333.17201 defines the practice of nursing to include the systematic application of substantial specialized knowledge and skill, derived from the biological, physical, and behavioral sciences, to the care, treatment, counsel, and health teaching of individuals who are experiencing changes in the normal health processes or who require assistance in the maintenance of health and the prevention or management of illness, injury, or disability.

KinderCare unlikely would have settled had they been required to provide insulin. Their argument would be that the accommodation is unreasonable. Doing the testing and perhaps assisting in the utilization of an insulin pump would be as far as they would go because to require the administration of insulin would force KinderCare to keep a licensed nurse on staff to administer the insulin. The settlement appears to have contemplated that monitoring of the glucose levels along with modifications in diet and close contact with emergency services and parents according to the parents’ directives, should go a long way to keeping these children healthy and happy.

Note well though, this was a settlement. The issue has not been litigated and is up for grabs for willing participants. There may be child care centers for which providing insulin would not be an unreasonable accommodation. The analysis is case specific as to what is a reasonable accommodation.

The U.S. Department of Justice, Civil Rights Division, Disability Rights Section published ‘Commonly Asked Questions About Child Care Centers and the Americans with Disabilities Act’ which can be found at:
www.usdoj.gov/crt/ada/childq%26a.htm

Comment/Inquire