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TexLaw, Attorney
Category: Legal
Satisfied Customers: 4430
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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My 6 year old son has ADHD and Oppositional Defiance Disorder.

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My 6 year old son has ADHD and Oppositional Defiance Disorder. He has recently switched daycares on 5/30/12 and was disenrolled on 6/29/12. The director of the daycare has been on maternity leave since a few days before he started attending the daycare and is not due back until 7/9/12. I have been dealing with the director of the daycare through the assistant director who calls her on the phone. I feel that he was disenrolled for a bogus reason and I was wondering if I would be able to consult a local attorney and file a lawsuit for discrimination (or something of the sort) based on the following grounds:

1. My son has not ever put anyone in the daycare center in immediate danger. The worst he has done was spit on someone.

2. I have only received 2 incident reports and both of those incident reports were because he "would not settle down." He spit on 2 different occasions and cursed on 3.

3. He has been suspended from daycare 2 times in the last 2 weeks because of the reasons in 2. I have also had to pick him up early 3 times, again because of those reasons.

4. I have taken him to his psychiatrist 3 times in the last two weeks. On June 19, 2012 his psychiatrist increased his dosing on one of his medicines and completely changed another. On June 22, 2012 his psychiatrist started weaning him off of the one that was increased so that she could switch that one to a different medicine since it was no longer working. She could not switch the medication until the other one was completely out of his system. The daycare center was made aware of this.

5. On June 27, 2012 his psychiatrist called the daycare center to talk to the assistant director and was told that she needed to contact the Director before she could talk to her (even with a release form signed) and the Director (on maternity leave) ended up telling her not to talk to his psychiatrist, to have her write the list of questions down and she can answer them.

6. The disenrollment policy for the daycare center states the following: "If a child's behavior gets to the point where it is a safety issue to the other children or staff in attendance or if the director feels that nothing further can be done for the child, then the child will be disenrolled."
- My child has never put anyone's safety at risk.
- The director has not been there since before my child started attending the
center. His psychiatrist and myself have also been doing everything in our
power to get his meds straightened out.
The policy also states "If you have any questions please feel free to consult with the director. I have asked on numerous occasions if the center could have her call me and I have also been told on numerous occasions that she would, and she has never called me. I was given her phone number on the day that she decided to disenroll my child.

7. On the day my child was disenrolled I had asked for a letter, in specific detail, why my son was disenrolled from the center. I was told that the director said she would write it when she came back from maternity leave on the 9th. She has not been at the daycare and does not know my son. The assistant director refuses to write a letter for me when she was the one who had been dealing with my child.

Do I have a case?

I'm sorry to hear about this situation.

From what you've told me, you have a claim under the Americans with Disabilities Act.

The ADA requires that child care providers not discriminate against persons with disabilities on the basis of disability, that is, that they provide children and parents with disabilities with an equal opportunity to participate in the child care center's programs and services. Specifically:

Centers cannot exclude children with disabilities from their programs unless their presence would pose a direct threat to the health or safety of others or require a fundamental alteration of the program.

Centers have to make reasonable modifications to their policies and practices to integrate children, parents, and guardians with disabilities into their programs unless doing so would constitute a fundamental alteration.

Centers must provide appropriate auxiliary aids and services needed for effective communication with children or adults with disabilities, when doing so would not constitute an undue burden.

Centers must generally make their facilities accessible to persons with disabilities. Existing facilities are subject to the readily achievable standard for barrier removal, while newly constructed facilities and any altered portions of existing facilities must be fully accessible.

Child care centers cannot just assume that a child's disabilities are too severe for the child to be integrated successfully into the center's child care program. The center must make an individualized assessment about whether it can meet the particular needs of the child without fundamentally altering its program. In making this assessment, the caregiver must not react to unfounded preconceptions or stereotypes about what children with disabilities can or cannot do, or how much assistance they may require. Instead, the caregiver should talk to the parents or guardians and any other professionals (such as educators or health care professionals) who work with the child in other contexts. Providers are often surprised at how simple it is to include children with disabilities in their mainstream programs.

Child care centers that are accepting new children are not required to accept children who would pose a direct threat or whose presence or necessary care would fundamentally alter the nature of the child care program.

Title III of the ADA prohibits discrimination on the basis of disability by places of public accommodation. A person may file a Title III complaint with the Department of Justice or file a lawsuit in federal court. The complainant does not have to file a complaint before suing in court. In circumstances in which the court believes it would be just, an attorney may be appointed for the complainant. The Department of Justice may also file suit on behalf of the complainants if the defendant has engaged in a pattern or practice of discrimination or if the case raises an issue of general public importance.

The traditional remedy in a private Title III lawsuit is injunctive relief. Injunctive relief may include an order to make a facility accessible, to provide auxiliary aids or services, modify an existing policy or practice, or whatever else the court feels would be appropriate to enable to full use and enjoyment of a place of public accommodation for people with disabilities.

The court may also choose to award attorneys’ fees at its discretion. This discretion is limited and ordinarily a prevailing plaintiff should recover attorney fees unless special circumstances would make such an award unjust. The rationale is that if successful plaintiffs were forced to bear their own attorneys cost, few parties would be able to afford to advance the public interest using only court-ordered injunctions. Prevailing defendants may be entitled to attorneys fees if the lawsuit was frivolous, unreasonable, or brought in bad faith.

In Title III cases brought by the Department of Justice, the court may award injunctive relief, compensatory damages, and other relief that the court believes is appropriate, like attorneys’ fees and court cost. In cases that are to vindicate the public interest, the Department of Justice may also seek civil penalties of up to $50,000 for the first violation and up to $100,000 for each subsequent violation.

The lack of money damages in private lawsuits may seem like a disincentive to a potential plaintiff, but there may be analogous state discrimination laws that do provide damages. A plaintiff may also combine other remedies available under state law with the ADA.

For example, suppose a wheelchair user is physically injured from going down a steep ramp that does not meet ADA guidelines. In this scenario, a plaintiff may be able to receive compensatory damages under state personal injury and negligence laws using the lack of ADA compliance as evidence against the defendant.

Like Title II, Title III is also silent with respect to statutes of limitations. Federal courts will use the most analogous statute of limitation under state law. Therefore, the statute of limitation may be different in every state and a potential litigant should check with an attorney to determine the applicable time limitation.

In conclusion, yes you have a case. However, the question is whether you would benefit from bringing it. It is unlikely that the state statutes provide for a very large penalty. However, to assess this properly, I need to know what state you are in. Please let me know.
TexLaw and other Legal Specialists are ready to help you
Customer: replied 5 years ago.

We live in Albuquerque New Mexico.

You are protected under the New Mexico Human Rights Act. The government may award a monetary award. However, you need to start the complaint by calling(NNN) NNN-NNNNor toll-free at 1-800-566-9471 to file the complaint with the state.

I encourage you to do this, just to make sure that this facility learns their lesson.

Customer: replied 5 years ago.
Thank you so very much and I will be sure to follow through with my situation! I greatly appreciate your help!