[Ohio-talk] Protecting the Rights of Parents and Prospective Parents with Disabilities:
Walter Mitchell
wmitch at zoomtown.com
Wed Sep 9 12:51:06 UTC 2015
Great information! Thanks Suzann
Much Love,
Walter Mitchell
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Cc: Suzanne Turner
Subject: [Ohio-talk] Protecting the Rights of Parents and Prospective
Parents with Disabilities:
Please read this document. This information is one of the most important
initiatives for the National Federation of the Blind. It also contains Q/A
as well.
NOTE!
You may or not know of a person who is going through this, but I am sure you
will some day.
Suzanne
U.S. Department of Health And Human Services
Office for Civil Rights Administration for Children and Families
U.S. Department of Justice
Civil Rights Division
Disability Rights Section
Protecting the Rights of Parents and Prospective Parents with Disabilities:
Technical Assistance for State and Local Child Welfare Agencies and Courts
under
Title II of the Americans with Disabilities Act and Section 504 of the
Rehabilitation Act
The United States Department of Health and Human Services (HHS) and the
United States Department of Justice (DOJ) are issuing this technical
assistance to assist state and local child welfare agencies and courts to
ensure that the welfare of children and families is protected in a manner
that also protects the civil rights of parents and prospective parents
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn1> 1 with
disabilities. This guidance provides an overview of the issues and
application of civil rights laws, answers to specific questions and
implementation examples for child welfare agencies and courts, and resources
to consult for additional information.
Section 504 of the Rehabilitation Act of 1973 (Section 504)
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn2> 2 and Title II
of the Americans with Disabilities Act of 1990 (ADA)
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn3> 3 protect
parents and prospective parents with disabilities from unlawful
discrimination in the administration of child welfare programs, activities,
and services. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn4> 4
At the same time, child welfare agencies and courts have the responsibility
to protect children from abuse and neglect. The goals of child welfare and
disability non-discrimination are mutually attainable and complementary.
For example, ensuring that parents and prospective parents with disabilities
have equal access to parenting opportunities increases the opportunities for
children to be placed in safe and caring homes.
Need for This Technical Assistance
Both the HHS Office for Civil Rights (OCR) and DOJ Civil Rights Division
have received numerous complaints of discrimination from individuals with
disabilities involved with the child welfare system, and the frequency of
such complaints is rising. In the course of their civil rights enforcement
activities, OCR and DOJ have found that child welfare agencies and courts
vary in the extent to which they have implemented policies, practices, and
procedures to prevent discrimination against parents and prospective parents
with disabilities in the child welfare system.
For example, in a recent joint investigation by OCR and DOJ of practices of
a State child welfare agency, OCR and DOJ determined that the State agency
engaged in discrimination against a parent with a disability.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn5> 5 The
investigation arose from a complaint that a mother with a developmental
disability was subject to discrimination on the basis of her disability
because the State did not provide her with supports and services following
the removal of her two-day-old infant. The supports and services provided
and made available to nondisabled parents were not provided to this parent,
and she was denied reasonable modifications to accommodate her disability.
As a result, this family was separated for more than two years.
These issues are long-standing and widespread. According to a comprehensive
2012 report from the National Council on Disability (NCD), parents with
disabilities are overly, and often inappropriately, referred to child
welfare services, and once involved, are permanently separated at
disproportionately high rates.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn6> 6 In a review
of research studies and other data, NCD concluded that among parents with
disabilities, parents with intellectual disabilities and parents with
psychiatric disabilities face the most discrimination based on stereotypes,
lack of individualized assessments, and failure to provide needed services.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn7> 7 Parents who
are blind or deaf also report significant discrimination in the custody
process, as do parents with other physical disabilities.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn8> 8 Individuals
with disabilities seeking to become foster or adoptive parents also
encounter bias and unnecessary barriers to foster care and adoption
placements based on speculation and stereotypes about their parenting
abilities. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn9> 9
Discriminatory separation of parents from their children can result in
long-term negative consequences to both parents and their children. In
addition to the OCR and DOJ case where a mother and daughter were deprived
of the opportunity for maternal/child bonding for two years, the National
Council on Disability report is replete with case studies with similar
consequences. For example, a child welfare agency removed a newborn for 57
days from a couple because of assumptions and stereotypes about their
blindness, undermining precious moments for the baby and parents that can
never be replaced.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn10> 10 Similarly,
after a child welfare agency removed a three-year-old from his grandmother
because she had arthritis and a mobility disability, the toddler developed
behavioral issues and progressively detached from his grandmother, though he
had had no such experiences before this separation.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn11> 11 Any case
of discrimination against parents and caregivers due to their disability is
not acceptable.
Role of HHS and DOJ
The Children's Bureau in the HHS Administration for Children and Families
administers funding for child welfare agencies and courts and provides
guidance and technical assistance to child welfare agencies regarding child
welfare law. HHS OCR is responsible for ensuring that entities receiving
Federal financial assistance from HHS, including child welfare agencies and
state courts, comply with their legal obligation under Section 504 to
provide equal access to child welfare services and activities in a
nondiscriminatory manner. In addition, both DOJ and HHS OCR enforce Title
II of the ADA against public entities, including child welfare agencies and
state courts.
Overview of Legal Requirements
Title II of the ADA
Title II of the ADA provides that no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by such entity.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn12> 12 Title II of
the ADA applies to the services, programs, and activities of all state and
local governments throughout the United States, including child welfare
agencies and court systems.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn13> 13 The
"services, programs, and activities" provided by public entities include,
but are not limited to, investigations, assessments, provision of in-home
services, removal of children from their homes, case planning and service
planning, visitation, guardianship, adoption, foster care, and reunification
services. "Services, programs, and activities" also extend to child welfare
hearings, custody hearings, and proceedings to terminate parental rights.
Section 504 of the Rehabilitation Act
Section 504 provides that no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of any entity that
receives Federal financial assistance, or be subjected to discrimination by
such entity. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn14> 14
Federal financial assistance includes grants, loans, and reimbursements from
Federal agencies, including assistance provided to child welfare agencies
and the courts. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn15>
15 An entity can be a recipient of Federal financial assistance either
directly or as a sub-recipient.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn16> 16 Section 504
applies to all of the operations of agencies and sub-agencies of state and
local governments, even if Federal financial assistance is directed to one
component of the agency or for one purpose of the agency.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn17> 17 Recipients
of Federal financial assistance must agree to comply with Section 504, and
generally other civil rights laws, as a condition of receiving Federal
financial assistance.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn18> 18
Application
A child welfare agency or court may not, directly or through contract or
other arrangements, engage in practices or methods of administration that
have the effect of discriminating on the basis of disability, or that have
the purpose or effect of defeating or substantially impairing accomplishment
of the objectives of the child welfare agency's or court's program for
persons with disabilities.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn19> 19 Under these
prohibitions, a child welfare agency could be responsible for the
discriminatory actions of a private foster care or adoption agency with
which it contracts when those actions are taken in fulfillment of the
private entity's contractual obligations with the child welfare agency. For
example, if the private foster care or adoption agency imposed
discriminatory eligibility requirements for foster or adoptive parents that
screened out prospective parents with HIV, the state child welfare agency
would most likely be responsible for the contractor's practice of
discriminating on the basis of disability.
Two principles that are fundamental to Title II of the ADA and Section 504
are:
(1) individualized treatment; and (2) full and equal opportunity. Both of
these principles are of particular importance to the administration of child
welfare programs.
Individualized treatment. Individuals with disabilities must be treated on
a case-by-case basis consistent with facts and objective evidence.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn20> 20 Persons
with disabilities may not be treated on the basis of generalizations or
stereotypes. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn21> 21
For example, prohibited treatment would include the removal of a child from
a parent with a disability based on the stereotypical belief, unsupported by
an individual assessment, that people with disabilities are unable to safely
parent their children. Another example would be denying a person with a
disability the opportunity to become a foster or adoptive parent based on
stereotypical beliefs about how the disability may affect the individual's
ability to provide appropriate care for a child.
Full and equal opportunity. Individuals with disabilities must be provided
opportunities to benefit from or participate in child welfare programs,
services, and activities that are equal to those extended to individuals
without disabilities.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn22> 22 This
principle can require the provision of aids, benefits, and services
different from those provided to other parents and prospective parents where
necessary to ensure an equal opportunity to obtain the same result or gain
the same benefit, such as family reunification.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn23> 23
This does not mean lowering standards for individuals with disabilities;
rather, in keeping with the requirements of individualized treatment,
services must be adapted to meet the needs of a parent or prospective parent
who has a disability to provide meaningful and equal access to the benefit.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn24> 24 In some
cases, it may mean ensuring physical or programmatic accessibility or
providing auxiliary aids and services to ensure adequate communication and
participation, unless doing so would result in a fundamental alteration to
the nature of the program or undue financial and administrative burden.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn25> 25 For
example, a child welfare agency must provide an interpreter for a father who
is deaf when necessary to ensure that he can participate in all aspects of
the child welfare interaction. In other instances, this may mean making
reasonable modifications to policies, procedures, or practices, unless doing
so would result in a fundamental alteration to the nature of the program.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn26> 26 For
example, if a child welfare agency provides classes on feeding and bathing
children and a mother with an intellectual disability needs a different
method of instruction to learn the techniques, the agency should provide the
mother with the method of teaching that she needs.
Under Title II of the ADA or Section 504, in some cases, a parent or
prospective parent with a disability may not be appropriate for child
placement because he or she poses a significant risk to the health or safety
of the child that cannot be eliminated by a reasonable modification.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn27> 27 This
exception is consistent with the obligations of child welfare agencies and
courts to ensure the safety of children. However, both the ADA and Section
504 require that decisions about child safety and whether a parent or
prospective parent represents a threat to safety must be based on an
individualized assessment and objective facts, including the nature,
duration, and severity of the risk to the child, and the probability that
the potential injury to the child will actually occur.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn28> 28 In
addition, if the risk can be eliminated by a reasonable modification of
policies, practices, or procedures, or by the provision of auxiliary aids or
services, the child welfare agency must take such mitigating actions.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn29> 29 A public
entity may impose legitimate safety requirements necessary for the safe
operation of its services, programs, or activities, but they may not be
based on stereotypes or generalizations about persons with disabilities.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn30> 30
By applying these principles consistently in the child welfare system, child
welfare agencies and courts can ensure that parents and prospective parents
with disabilities have equal access to parenting opportunities while
ensuring children safely remain in or are placed in safe and caring homes.
The attached Questions and Answers provide more detailed information and
specific implementation examples for child welfare agencies and courts.
QUESTIONS AND ANSWERS
1. What are the basic requirements of ADA Title II and Section 504?
Answer: Title II of the ADA provides that no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination in, the services, programs, or activities of state and local
government entities.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn31> 31 Section 504
similarly prohibits discrimination on the basis of disability against
qualified individuals with a disability in programs, services, and
activities receiving Federal financial assistance.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn32> 32
Under the ADA and Section 504, programs cannot deny people with disabilities
an opportunity to participate,
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn33> 33 and must
provide people with disabilities with meaningful and equal access to
programs, services, and activities.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn34> 34 Programs
and services must be accessible to and usable by people with disabilities.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn35> 35 In
addition, programs must provide people with disabilities with an equal
opportunity to participate in and benefit from the programs, services and
activities of the entity;
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn36> 36 they are
also prohibited from using methods of program administration, which includes
written rules as well as agency practices, that have a discriminatory effect
on individuals with disabilities.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn37> 37 Moreover,
programs must provide reasonable modifications in policies, practices, and
procedures when necessary to avoid discrimination;
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn38> 38 and must
take appropriate steps to ensure that communications with applicants,
participants, members of the public, and companions with disabilities are as
effective as communications with others through the provision of auxiliary
aids and services.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn39> 39
Who is protected by disability nondiscrimination laws?
2. Who is considered a person with a disability under Title II of the ADA
and Section 504?
Answer: The ADA and Section 504 protect the rights of individuals with
disabilities. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn40>
40 A "disability" is defined as a physical or mental impairment that
substantially limits a major life activity, such as caring for oneself,
performing manual tasks, breathing, standing, lifting, bending, speaking,
walking, reading, thinking, learning, concentrating, seeing, hearing,
eating, sleeping, or working.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn41> 41 Major life
activities also include the operation of major bodily functions, including
but not limited to, functions of the immune system, normal cell growth,
digestive, bowel, or bladder, neurological, brain, and respiratory,
circulatory, endocrine, and reproductive functions.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn42> 42
Congress has made clear that the definition of disability in the ADA and
Section 504 is to be interpreted broadly.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn43> 43 Even if an
individual's substantially limiting impairment can be mitigated through the
use of medication; medical supplies, equipment, and devices; learned
behavioral or adaptive neurological modifications; assistive technology
(e.g. a person with a hearing disability who uses hearing aids that
substantially restores the sense of hearing); or reasonable modifications to
policies, practices, or procedures, the individual is still protected by the
ADA and Section 504.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn44> 44 The ADA and
Section 504 also apply to people who have a record of having a substantial
impairment (e.g., medical, military, or employment records denoting such an
impairment), or are regarded as having such an impairment, regardless of
actually having an impairment.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn45> 45
An "individual with a disability" under the ADA and Section 504 does not
include an individual who is currently engaged in the illegal use of drugs,
when the state or local government program or program receiving Federal
financial assistance acts on the basis of the illegal drug use.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn46> 46 However, an
individual is not excluded from the definition of disability on the basis of
the illegal use of drugs if he or she (1) has successfully completed a drug
rehabilitation program or has otherwise been successfully rehabilitated and
is no longer engaging in drug use, or (2) is participating in a supervised
rehabilitation program and is no longer engaging in drug use.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn47> 47
To be eligible, an individual with a disability must be "qualified." An
individual with a disability is qualified if he or she meets the essential
eligibility requirements of a service, program, or activity, with or without
the provision of reasonable modifications, the provision of appropriate
auxiliary aids and services, or the removal of architectural and
communication barriers.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn48> 48
3. Who do Title II of the ADA and Section 504 protect in child welfare
programs?
Answer: Title II of the ADA and Section 504 protect qualified individuals
with disabilities, which can include children, parents, legal guardians,
relatives, other caretakers, foster and adoptive parents, and individuals
seeking to become foster or adoptive parents, from discrimination by child
welfare agencies and courts.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn49> 49 Title II
also protects individuals or entities from being denied or excluded from
child welfare services, programs or activities because of association with
an individual with a disability.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn50> 50 For example,
Title II prohibits a child welfare agency from refusing to place a child
with a prospective foster or adoptive parent because the parent has a friend
or relative with HIV.
Title II and Section 504 also protect "companions" of individuals involved
in the child welfare system when the companion is an appropriate person with
whom the child welfare agency or court should communicate. A companion may
include any family member, friend, or associate of a person seeking or
receiving child welfare services.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn51> 51 For
instance, when a child welfare agency communicates with an individual's
family member who is deaf, appropriate auxiliary aids and services to the
family member must be provided by the agency to ensure effective
communication. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn52>
52
Finally, the ADA and Section 504 protect individuals from any retaliation or
coercion for exercising their right not to experience discrimination on the
basis of disability. Individuals enjoy this protection whether or not they
have a disability.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn53> 53
Who is required to comply with the disability nondiscrimination laws?
4. What types of child welfare programs and activities are covered by
these laws?
All activities of child welfare agencies are covered by Title II and Section
504, including removal proceedings and agencies' programs and activities
must not discriminate on the basis of disability.
Answer: Title II covers all of the programs, services, and activities of
state and local governments, their agencies, and departments.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn54> 54 Similarly,
Section 504 applies to all of the activities of agencies that receive
Federal financial assistance.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn55> 55 Therefore,
all child welfare-related activities and programs of child welfare agencies
and courts are covered, including, but not limited to, investigations,
witness interviews, assessments, removal of children from their homes, case
planning and service planning, visitation, guardianship, adoption, foster
care, reunification services, and family court proceedings. Title II and
Section 504 also make child welfare agencies responsible for the programs
and activities of private and non-profit agencies that provide services to
children and families on behalf of the state or municipality.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn56> 56
5. Do Title II and Section 504 apply to the programs, services, and
activities of family courts?
Answer: Yes. State court proceedings, such as termination of parental
rights proceedings, are state activities and services for purposes of Title
II. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn57> 57 Section
504 also applies to state court proceedings to the extent that court systems
receive Federal financial assistance.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn58> 58
Title II and Section 504 require court proceedings to be accessible to
persons with disabilities, and persons with disabilities must have an equal
opportunity to participate in proceedings.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn59> 59 For
example, if a conference or hearing is scheduled in a location that is
inaccessible to wheelchair users, it should be moved to an accessible
location in order to ensure a wheelchair user can participate fully in the
conference or hearing.
Courts are required to provide auxiliary aids and services when necessary to
ensure effective communication, unless an undue burden or fundamental
alteration would result.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn60> 60 For
example, courts should provide appropriate auxiliary aids and services to a
parent who is deaf so that he or she can access court proceedings as fully
and effectively as those who are not deaf.
Like child welfare agencies, courts must also make reasonable modifications
to policies, practices, and procedures where necessary to avoid
discrimination on the basis of disability.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn61> 61 For
example, it may be necessary to adjust hearing schedules to accommodate the
needs of persons with disabilities, if the need for the adjustment is
related to the individual's disability. Or it may be necessary to provide
an aide or other assistive services in order for a person with a disability
to participate fully in a court event.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn62> 62 Such
assistance should be provided unless doing so would result in a fundamental
alteration. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn63> 63
6. Do Title II and Section 504 apply to private contractors of child
welfare agencies and courts?
Answer: Yes. Title II prohibits discrimination in child welfare programs
and services when those services are provided by contractors.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn64> 64 Section 504
prohibits discrimination in child welfare programs receiving federal
financial assistance, including programs receiving federal financial
assistance operated by private entities under contract with child welfare
agencies. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn65> 65
Accordingly, to the extent that courts and agencies contract with private
agencies and providers to conduct child welfare activities, the agencies
should ensure that in the performance of their contractual duties
contractors comply with the prohibition of discrimination in Title II and
Section 504. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn66> 66
What do the disability nondiscrimination laws require of child welfare
agencies and courts?
7. What is a reasonable modification?
Answer: Under Title II of the ADA and Section 504, child welfare agencies
and courts must make changes in policies, practices, and procedures to
accommodate the individual needs of a qualified person with a disability,
unless the change would result in a fundamental alteration to the nature of
the program. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn67> 67
Parenting skills do not come naturally to many parents, with or without
disabilities. To provide assistance to parents with disabilities that is
equal to that offered to parents without disabilities, child welfare
agencies may be required to provide enhanced or supplemental training, to
increase frequency of training opportunities, or to provide such training in
familiar environments conducive to learning. For example, child welfare
agencies may have a parenting skills class once per week. For a parent with
a disability who requires individualized assistance in learning new skills
because of her or his disability, child welfare agencies may need to modify
this training to allow more frequent, longer, or more meaningful training.
8. What are auxiliary aids and services? What does it mean to provide
effective communication?
Answer: Child welfare agencies and courts are required to take appropriate
steps - including the provision of appropriate auxiliary aids and services -
where necessary to ensure that individuals with communication disabilities
understand what is said or written and can communicate as effectively as
individuals without disabilities.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn68> 68 Examples of
auxiliary aids and services include, among others, qualified interpreters,
note takers, computer-aided transcription services, accessible electronic
and information technology, written materials, telephone handset amplifiers,
assistive listening devices, assistive listening systems, telephones
compatible with hearing aids, closed caption decoders, open and closed
captioning, telecommunications devices for deaf persons (TDD's), videotext
displays, qualified readers, taped texts, audio recordings, braille
materials, large print materials, and modifications to existing devices.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn69> 69
Child welfare agencies and courts should consider whether they are taking
appropriate steps to ensure that effective communication is provided in
different settings and as cases develop. For example, a qualified
interpreter may be necessary for smaller settings involving only a few
people, such as home visits or assessments, whereas the use of real-time
captioning may be appropriate during larger group meetings, such as family
team meetings or in court, where numerous people are present or where the
layout of the room makes it difficult to view an interpreter and obtain
visual cues from the speaker.
The type of auxiliary aid or service necessary to ensure effective
communication will vary in accordance with the method of communication used
by the individual with a disability; the nature, length, and complexity of
the communication involved; and the context in which the communication is
taking place. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn70>
70 For example, a local child welfare agency may be required to provide
qualified interpreters to ensure effective communication with individuals
with disabilities during agency meetings to discuss service planning.
However, to communicate a simple message such as an appointment date or
address, handwritten notes may be sufficient.
Child welfare agencies must refrain from using minor children as
interpreters except in limited exigent circumstances. Adult companions may
be used as interpreters only in emergencies and only when other factors are
met.
State and local child welfare agencies and courts must give primary
consideration to the auxiliary aid or service requested by the individual.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn71> 71 This means,
for example, that if a parent with a disability requests a qualified
interpreter who is an oral transliterator (a type of interpreter who
facilitates spoken communication between individuals who are deaf or hard of
hearing and individuals who are not), the agency must provide a qualified
oral transliterator, unless the agency can demonstrate that it would pose a
fundamental alteration or an undue administrative or financial burden and an
alternative auxiliary aid or service provides communication to the
individual that is as effective as communication provided to others.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn72> 72 If
provision of a particular auxiliary aid or service would result in a
fundamental alteration in the nature of a service, program, or activity, or
if it would result in undue financial and administrative burdens, a child
welfare agency or court need not provide it.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn73> 73 These
entities must nonetheless provide auxiliary aids or services that do not
result in a fundamental alteration or undue burdens that place the
individual with a disability on equal footing with individuals without
disabilities to the maximum extent possible.
In order to be effective, auxiliary aids and services must be provided in a
timely manner and in such a way as to protect the privacy and independence
of the individual with a disability.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn74> 74
Child welfare agencies and courts are prohibited from requiring individuals
with disabilities to supply their own interpreters or other auxiliary aids
and services. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn75>
75 Child welfare agencies and courts may not rely on minor children
accompanying individuals with disabilities to interpret, except in
emergencies involving imminent threats to the safety or welfare of an
individual or the public where no interpreter is available.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn76> 76
Child welfare agencies should consult with and include organizations that
support and advocate for the rights of individuals with disabilities in
their policy-making and training efforts.
Child welfare agencies and courts may rely on adults accompanying
individuals with disabilities to interpret, but only in emergencies or where
the individual with a disability specifically makes such a request, the
accompanying adult agrees to provide such assistance, and reliance on that
adult for such assistance is appropriate under the circumstances.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn77> 77 State and
local child welfare agencies and courts are also prohibited from placing a
surcharge on a particular individual with a disability or any group of
individuals with disabilities to cover the costs of the provision of
auxiliary aids or other services that are required to provide that
individual or group with nondiscriminatory treatment.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn78> 78
9. What steps are child welfare agencies required to take to ensure that
parents and prospective parents with disabilities involved with the child
welfare system have an equal opportunity to participate in and benefit from
their programs and activities?
Title II and Section 504 require that agency staff refrain from basing
assessments, services, or decisions on assumptions, generalizations, or
stereotypes about disability.
Answer: Child welfare agencies are required to ensure that parents and
prospective parents with disabilities involved in the child welfare system
are afforded an opportunity to preserve their families and/or to become
parents that is equal to the opportunity that the entities offer to
individuals without disabilities.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn79> 79
Agencies should take steps to ensure, for example, that investigators,
social workers, supervisors, and others base their assessments of and
decisions regarding individuals with disabilities on actual facts that
pertain to the individual person, and not on assumptions, generalizations,
fears, or stereotypes about disabilities and how they might manifest. The
child welfare agency's obligation to ensure individualized assessments
applies at the outset and throughout any involvement that an individual with
a disability has with the child welfare system.
Child welfare agencies should take steps to ensure that their obligations
under Title II and Section 504 are met by reviewing the following:
* existing policies, practices, and procedures;
* how the agency actually processes cases;
* the agency's licensing and eligibility requirements for foster
parents and guardians; and
* whether there are staff training or professional development needs.
Service plans for parents and prospective parents should address the
individual's disability-related needs and the auxiliary aids and services
the agency will provide to ensure equal opportunities. At the same time,
service plans should not rely on fears or stereotypes to require parents
with disabilities to accept unnecessary services or complete unnecessary
tasks to prove their fitness to parent when nondisabled parents would not be
required to do so.
Agencies also have an obligation to ensure that the aids, benefits, and
services provided to parents and prospective parents in support of
appropriate service plan activities and goals - such as visitation,
parenting skills training, transportation assistance, counseling, respite,
and other "family preservation services" and "family support services" - are
appropriately tailored to be useful to the individual.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn80> 80 For
example, if a child welfare agency provides transportation to visits for
individuals without disabilities, it should provide accessible
transportation to individuals with disabilities to ensure equal opportunity.
To ensure that persons with disabilities have equal opportunity to retain or
reunify with their children, it may be necessary for the agency to
reasonably modify policies, practices, and procedures in child welfare
proceedings. In general, agencies should consider whether their existing
policies, practices, and procedures; their actual processing of cases; and
their training materials comply with the nondiscrimination requirements of
Title II and Section 504 for individuals with disabilities. Agencies should
also take appropriate steps to ensure that components of child welfare
processing, such as "fast-track" and concurrent planning, are not applied to
persons with disabilities in a manner that has a discriminatory effect and
that denies parents with disabilities the opportunity to participate fully
and meaningfully in family reunification efforts.
In some instances, providing appropriate supports for persons with
disabilities means selecting an appropriate alternative already provided in
the Federal child welfare statutes. For instance, section 475 of the Social
Security Act provides that the child welfare agency is required to file a
petition to terminate parental rights when the child is in foster care for
the preceding 15 out of 22 months. However, the law provides exceptions to
this requirement and gives child welfare agencies the flexibility to work
with parents who have a child in foster care beyond the 15 month period,
including parents with disabilities.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn81> 81 Exceptions
to the termination of parental rights requirement include situations where:
(1) at the state's discretion, the child is being cared for by a relative;
(2) there is a compelling reason for determining that filing the petition
would not be in the best interests of the child; or (3) the state, when
reasonable efforts are to be made, has failed to provide such services
deemed necessary for the safe return of the child to his or her home.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn82> 82 As to number
(3), a child welfare agency should provide the family of the child with the
services necessary for the safe return of the child to the child's home in a
manner that meets the unique needs of the family. Failure to provide
services, including services to address family members' disability-related
needs, could qualify as an exception to the termination of parental rights
requirement. Decisions about whether this exception applies to a situation
in which the supports necessary for a person with a disability to access
services were not provided should be made on a case-by-case basis.
Given the responsibilities of agencies discussed above, we also recommend
that courts consider whether parents and prospective parents with
disabilities have been afforded an equal opportunity to attain
reunification, including whether they have been provided with appropriate
services and supports and other reasonable modifications to enable them to
participate fully and meaningfully in family preservation efforts.
Additionally, we suggest that courts consider whether any reasonable
modifications are necessary and should be made for parents with
disabilities. We also recommend that courts consider evidence concerning
the manner in which the use of adaptive equipment or supportive services may
enable a parent with disabilities to carry out the responsibilities of
parenting.
Foster care and adoption agencies must also ensure that qualified foster
parents and prospective parents with disabilities are provided opportunities
to participate in foster care and adoption programs equal to opportunities
that agencies provide to individuals without disabilities.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn83> 83 This may
require foster care and adoption agencies to reasonably modify policies,
practices, and procedures, where necessary to avoid discrimination on the
basis of disability. For example, an adoption agency may be required to
provide large print and electronically accessible adoption materials to
accommodate the known needs of a visually impaired adoption program
applicant.
10. When a child welfare agency or court provides or requires an assessment
of a parent during the processing of the child welfare case, what do Title
II and Section 504 require regarding the assessment?
Answer: Title II and Section 504 require that assessments be
individualized. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn84>
84 An individualized assessment is a fact-specific inquiry that evaluates
the strengths, needs, and capabilities of a particular person with
disabilities based on objective evidence, personal circumstances,
demonstrated competencies, and other factors that are divorced from
generalizations and stereotypes regarding people with disabilities. Child
welfare agencies and courts may also be required to provide reasonable
modifications to their policies, practices, or procedures and/or appropriate
auxiliary aids and services during assessments to ensure equal opportunities
for individuals with disabilities. For example, a child welfare agency or
court may be required to provide a qualified sign language interpreter to
accommodate an individual with a communication disability during an
evaluation to ensure an accurate assessment.
11. How does the equal opportunity requirement apply to case planning
activities of child welfare agencies?
Answer: The equal opportunity requirement applies throughout the continuum
of a child welfare case, including case planning activities. In many
instances, providing the same services and resources to an individual with a
disability that are provided to individuals without disabilities will not be
sufficient to provide an equal opportunity to an individual with a
disability. Where this is the case, Title II and Section 504 may require
agencies to provide additional, individually tailored services and resources
to meet the requirement to provide an equal opportunity to participate in
and benefit from the program. For example, when providing training to
parents, agencies should consider the individual learning techniques of
persons with disabilities and may need to incorporate the use of visual
modeling or other individualized techniques to ensure equal opportunity to
participate in and benefit from the training.
Staff should consider whether the agency is appropriately assisting family
members in meeting service plan tasks and case goals, and whether
modifications must be made. For example, if parenting training is not
working, staff should evaluate whether there are any unnecessary barriers to
the training that could be removed or reasonably modified, such as increased
opportunities for modeling behavior. Agencies should also ensure that staff
members develop appropriate service plan tasks and goals that address the
individualized needs of all affected family members with disabilities,
recognizing that allowing parents with disabilities to use family members as
part of their support network may be appropriate.
12. Is an agency required to arrange for services to parents and
prospective parents with disabilities that are necessary to avoid
discrimination but are not available within the agency's programs?
Child welfare agencies may be required to modify their own services, or,
when necessary, to arrange for services outside of the agency, in order to
ensure equal opportunity for parents and prospective parents with
disabilities under Title II and Section 504.
Answer: In addition to providing to parents with disabilities all
reunification services that it provides to parents without disabilities, a
child welfare agency may be required, under Title II and Section 504, to
arrange for available services from sources outside of the agency as a
reasonable modification of its procedures and practices for parents with
disabilities so long as doing so would not constitute a fundamental
alteration. Arranging for such services from outside sources may be
necessary to provide an equal opportunity to participate in and benefit from
the agency's programs. Many specialized services to support persons with
disabilities are often available from other social service agencies, as well
as disability organizations. For example, for a person with a mental health
disability, mental health services and supports, such as supportive housing,
peer supports, assertive community treatment, and other community-based
supports are often available from mental health service agencies. Child
welfare agencies should coordinate with such agencies and organizations to
ensure that parents and prospective parents with disabilities receive the
most complete set of support services possible, and also to ensure that
reunification and other services are specifically tailored to their needs.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn85> 85 This
requirement does not change an entity's responsibility to make available
those reunification services provided to parents without disabilities or to
reasonably modify them to provide equal opportunity.
13. Are child welfare agencies and courts permitted to impose a surcharge
on persons with disabilities for the provision of reasonable modifications
or auxiliary aids and services?
Answer: No. Title II prohibits the imposition of surcharges to cover the
costs of measures required to provide an individual with nondiscriminatory
treatment. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn86> 86
For example, child welfare agencies and courts may not charge persons with
disabilities for any costs associated with providing effective communication
during visitation, meetings, and court hearings, and may be required to
provide transportation to accessible facilities when needed to fulfill their
program access obligations.
14. Child welfare agencies have an obligation to ensure the health and
safety of children. How can agencies comply with the ADA and Section 504
while also ensuring health and safety?
Answer: Under child welfare law, child welfare agencies must make decisions
to protect the safety of children. The ADA and Section 504 are consistent
with the principle of child safety. For example, the ADA explicitly makes an
exception where an individual with a disability represents a "direct
threat." <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn87> 87
Section 504 incorporates a similar principle.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn89> 88
Under the ADA and Section 504, a direct threat is a significant risk to the
health or safety of others that cannot be eliminated by a modification of
policies, practices, or procedures, or by the provision of auxiliary aids or
services. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn89> 89
In determining whether an individual poses a direct threat to the health or
safety of a child or others, child welfare agencies and courts must make an
individualized assessment, based on reasonable judgment that relies on
current medical knowledge or on the best available objective evidence, to
ascertain the nature, duration, and severity of the risk to the child; the
probability that the potential injury to the child will actually occur; and
whether reasonable modifications of policies, practices, or procedures will
mitigate the risk.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn90> 90
As such, in some cases an individual with a disability may not be a
qualified individual with a disability for child placement purposes. What
both the ADA and Section 504 require, however, is that decisions about child
safety and whether a parent, prospective parent, or foster parent represents
a direct threat to the safety of the child must be based on an
individualized assessment and objective facts and may not be based on
stereotypes or generalizations about persons with disabilities.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn91> 91
15. What are some other best practices for child welfare agencies and
courts?
Answer: We recommend that child welfare agencies and courts review and
update their policies and procedures on a regular basis to ensure that they
comply with the ADA and Section 504. We recommend that child welfare
agencies and courts also ensure that their employees and contractors are
sufficiently trained in ADA and Section 504 compliance. In addition, we
recommend that they look for ways to coordinate with disability
organizations and agencies to assist in service planning and to support them
in their efforts to ensure equal opportunity for parents and prospective
parents with disabilities.
How can aggrieved persons file a complaint?
16. What can individuals do when they believe they have been subjected to
discrimination in violation of Title II or Section 504?
Answer: An aggrieved person may raise a Title II or Section 504 claim in
child welfare proceedings. Additionally, subject to certain limitations, an
aggrieved person may pursue a complaint regarding discrimination in child
welfare services, programs, or activities under Title II or Section 504 in
federal court. <http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn92>
92
Aggrieved individuals may also file complaints with HHS and DOJ. HHS and
DOJ also have authority to initiate compliance review investigations of
child welfare agencies and courts with or without receiving a complaint. If
an investigation of a complaint or a compliance review reveals a violation,
HHS or DOJ may issue letters of findings and initiate resolution efforts.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn93> 93 DOJ may
initiate litigation when it finds that a child welfare agency or court is
not in compliance with Title II. HHS may also refer cases to DOJ for
litigation where a violation is found and is not voluntarily resolved.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn94> 94
Title II and Section 504 allow for declaratory and injunctive relief, such
as an order from a court finding a violation and requiring the provision of
reasonable modifications. Title II and Section 504 also allow for
compensatory damages for aggrieved individuals. Individuals who prevail as
parties in litigation may also obtain reasonable attorney's fees, costs, and
litigation expenses.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn95> 95
Under Section 504, remedies also include suspension and termination of
Federal financial assistance, the use of cautionary language or attachment
of special conditions when awarding Federal financial assistance, and
bypassing recalcitrant agencies and providing Federal financial assistance
directly to sub-recipients.
<http://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftn96> 96
Additional Resources
For more information about the ADA and Section 504, you may call the DOJ's
toll-free ADA information line at 800-514-0301 or 800-514-0383 (TDD), or
access its ADA website at www.ada.gov <http://www.ada.gov/> . For more
information about the responsibilities of child welfare agencies under the
ADA and Rehabilitation Act, see "DOJ/HHS Joint Letter to Massachusetts
Department of Children and Families," at www.ada.gov/new.htm
<http://www.ada.gov/new.htm> . For more information about Title II of the
ADA, including the Title II Technical Assistance Manual and Revised ADA
Requirements: Effective Communication, see www.ada.gov/ta-pubs-pg2.htm
<http://www.ada.gov/ta-pubs-pg2.htm> .
Information about filing an ADA or Section 504 complaint with DOJ can be
found at www.ada.gov/filing_complaint.htm
<http://www.ada.gov/filing_complaint.htm> . Individuals who believe they
have been aggrieved under Title II or Section 504 should file complaints at
the earliest opportunity.
You can also file a Section 504 or Title II ADA complaint with OCR at
http://www.hhs.gov/ocr/civilrights/complaints/index.html.
General information about civil rights and child welfare issues can be found
at:
http://www.hhs.gov/ocr/civilrights/resources/specialtopics/adoption/index.ht
ml.
For information about ACF's Children Bureau, please visit:
http://www.acf.hhs.gov/programs/cb.
For ACF and OCR regional offices, please visit:
* http://www.acf.hhs.gov/programs/oro
* http://www.hhs.gov/ocr/office/about/rgn-hqaddresses.html
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