The Americans With Disabilities Act: What Adoption Agencies Need To Know (page 2)
The Americans with Disabilities Act [ADA], signed into law on July 26, 1990, prohibits discrimination on the basis of disability in employment and in programs and services provided by state and local governments, commercial facilities, and certain types of private agencies. By its specific terms, the ADA applies to all adoption agencies, irrespective of the number of employees. Public adoption agencies are covered under Title II and private adoption agencies are covered under Title III of the Act. The ADA contains important requirements designed to protect the interests of individuals with disabilities -- requirements that may affect the way in which agencies utilize disability-related criteria in the selection of prospective adoptive parents.
This article reviews the non-discrimination mandates of the ADA, discusses who is protected by the Act, and outlines the sanctions for ADA violations. It addresses such questions as:
Can an adoption agency have a policy under which individuals who are blind or deaf are automatically rejected from consideration as adoptive parents for safety reasons?
Can an adoption agency reject an individual who successfully completed a drug rehabilitation program two years ago and is no longer using drugs?
Can an adoption agency refuse to consider as adoptive parents persons who are HIV infected?
The Basic Requirements of the ADA
The ADA prohibits discrimination on the basis of disability. The non-discrimination rule is stated in Title II, which applies to public adoption agencies, as:
No qualified individual with a disability shall, by reason of such disability, be excluded from participation or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
In Title III, the rule that applies to private adoption agencies (which are considered "public accommodations" under the ADA) is stated as:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.
The broad principles underlying the non-discrimination rule of the ADA are equal opportunity to participate and equal opportunity to benefit. With regard to public agencies, these principles have long been in place as a result of The Rehabilitation Act of 1973, and the ADA confirms these mandates on public agencies in Title II. The ADA, however, also prohibits, in Title III, disability-based discrimination by certain private entities such as adoption agencies.
The ADA Requirements for Private Agencies
The ADA, for the first time, applies the principles of equal opportunity to participate and equal opportunity to benefit to private adoption agencies. One of the key ADA provisions is that adoption agencies may not use "standards or criteria or methods of discrimination that have the effect of discriminating on the basis of disability." The ADA lists a number of "specific prohibitions". Of particular relevance for adoption agencies is the specific prohibition against "imposing or applying eligibility criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities from fully and equally enjoying" any services "unless the criteria can be shown to be necessary for the provision" of those services.
One of the factors that can be used to justify the use of disability-related screening criteria is safety. If, however, safety is used to justify the screening out of individuals with disabilities, the decision must be based on actual risks and not on mere speculation, stereotypes, generalizations or unfounded fears about individuals with disabilities. Similarly, agencies may use the justification of "direct threat" when employing disability-related screening criteria. The law states that an agency is not required to permit an individual to participate in or benefit from a service when "that individual poses a direct threat to the health and safety of others". However, "direct threat" defined as "a significant risk of harm to the health or safety of others that cannot be eliminated" by modifications in policy, practice, or procedures must be determined on the basis of an individualized assessment. The ADA further requires that the determination of "direct threat" be 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; the probability that the potential injury will actually occur; and whether reasonable modification of policies, practices, or procedures will mitigate the risks.
These provisions make clear that the ADA is violated if an agency categorically rejects individuals with disabilities based on vague standards related to "safety" or "direct threat." Individualized assessments, drawing on objective data and a careful weighing of risks and opportunities to mitigate those risks, must support the rejection of individuals with disabilities from consideration as prospective adoptive parents. When such individualized assessments are utilized, the result may well be an acceptance of an individual with a significant disability, such as, for example, a woman who has crippling degenerative arthritis but whose home has been thoroughly adapted to enable her to function and whose husband is actively involved in parenting and home management.
Reprinted with the permission of the Evan B. Donaldson Adoption Institute. © 2007 Evan B. Donaldson Adoption Institute. All rights reserved.
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