Protecting the Rights of Parents and Prospective Parents with Disabilities: Technical Assistance for State and Local Child Welfare Agencies and 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.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.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.

¹² 42 U.S.C. § 12132.

¹³ 42 U.S.C. § 12131(1)(A), (B); see also, e.g., 28 C.F.R. § 35.130(b)(1) (prohibiting disability discrimination directly or through contractual, licensing, or other arrangements), 35.130(b)(3) (prohibiting methods of administration that have a discriminatory effect).  Private entities involved in the child welfare system may also be independently covered by Title III of the ADA, 42 U.S.C. §§ 12181-12189.

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.¹⁴  Federal financial assistance includes grants, loans, and reimbursements from Federal agencies, including assistance provided to child welfare agencies and the courts.¹⁵  An entity can be a recipient of Federal financial assistance either directly or as a sub-recipient.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.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.¹⁸

¹⁴ 29 U.S.C. § 794(a).

¹⁵ See, e.g., 28 C.F.R. § 42.105; 45 C.F.R. § 84.5.

¹⁶ See Grove City College v. Bell, 465 U.S. 555, 564 (1984).

¹⁷ 29 U.S.C. § 794(b).

¹⁸ See, e.g., 45 C.F.R. § 84.5.