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Are child care providers allowed to reject children who take medication? It might seem unlikely, but new regulations from the New York State Office of Children and Family Services (OCFS) appear to suggest they can.

The new Health and Infection Control regulations, effective January 31, require all licensed day care providers overseen by OCFS—in New York City these include after school programs and family day care services—to submit a written health care plan indicating the level of child illness they will accommodate.

Providers are given three options on official forms: “well children,” “mildly ill children” or “children taking medication.” Those who opt to serve the third category are required to have at least one staff member complete 30 hours of special training for administering medications.

While providers and legal experts say the OCFS regulations are intended to promote child safety, they fear they could also spark a legal battle.

The Americans with Disabilities Act requires equal access for disabled people, including those with chronic diseases, such as asthma. Although the regulations indicate programs have to comply with the ADA, “it is a complicated issue about whether the Americans with Disabilities Act requires [providers] to admit children requiring medication,” said Rebecca Kramnick, an attorney with Lawyers Alliance for New York. “By checking the box for healthy children only, you are exposing yourself to liability under the ADA.”

Brian Marchetti, a spokesperson for OCFS, defended the new guidelines. “These regulations are to help keep children safe,” he said. “If a child care provider doesn’t want to administer medication, that’s their choice.” When asked about liability under the ADA, he said that wasn’t a question for his agency and suggested the query be put to the Department of Justice instead.

Eric Holland, a spokesperson for the Department of Justice, explained in a written statement that the ADA “does not allow a child care facility to accept only non-disabled children…. However, it does not have to accept a child if there is no way to accommodate the child without causing an undue burden, a fundamental alteration in the nature of the child care program, or a direct threat to the health and safety of others.”

OCFS will provide the training free of charge, but some providers still have concerns about implementation. Robin Redmond, director of youth and immigrant services for a Brooklyn agency that operates an after-school program, said it is virtually impossible to screen out kids who have medical conditions. Besides, she points out, many kids are self-medicated. “Now they will have to give their inhalers to the trained staff,” said Redmond. “When a kid in a basement gym suddenly needs his inhaler and the trained staff is in a second floor classroom—what will happen?”

To date, roughly 600 out of the 18,400 day care providers regulated by OCFS have filed their plans, which are required by January 31 for any group that plans to serve children with medical needs. OCFS could not yet estimate how many providers have chosen to serve only healthy children.

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