New Federal Guidelines Aim to Protect Parents with Disabilities

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WASHINGTON — New federal guidelines aim to protect parents and prospective parents with disabilities from discrimination, the latest milestone in disability rights advocates’ fight to keep families together.

Parents and foster parents with disabilities can face discrimination in the child welfare system when officials question their ability to care for their children simply because they have a disability.

Parents with a range of physical and intellectual or developmental disabilities are vulnerable to having their children taken away from them. Prospective parents with disabilities who seek to adopt or foster a child may never be given the chance to do so.

In technical assistance released last week, agencies within the U.S. Health and Human Services (HHS) and Justice departments (DOJ) spell out how the Americans with Disabilities Act protects parents with disabilities, part of a new partnership between the two. They are entitled to individualized treatment and full and equal opportunity to participate in the child welfare system, the guidance said.

“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,” the guidance said.

The departments said they have received “numerous” discrimination complaints, and the frequency of complaints is rising. Child welfare agencies and courts vary in whether they have implemented policies to prevent discrimination.

[Related: Parents Turn Pain into Policy]

About 4.1 million parents with disabilities have children under 18 living at home, according to data from The National Center for Parents with Disabilities and their Families at Through the Looking Glass, a nonprofit that helps families that have a member with a disability.

Ella Callow, legal program director at the center, said the guidance is critical because it lets officials know they cannot just guess whether a parent is fit, based on their own ideas about a disability.

“Ignorance shouldn’t be the basis for the undermining of rights and the separation of families,” she said.

The guidance also will make it easier for advocates to change state policies and laws, and encourage more training and resources for the professionals who can evaluate families and recommend accommodations, Callow said.

“It’s going to drive some other things that hopefully are going to be positive as well,” she said.

Diane Smith Howard, senior staff attorney at the National Disability Rights Network, said she is heartened by the new guidance. While child welfare agencies have always had the obligation to follow the ADA, the guidance makes those requirements far clearer, she said.

It also points to the need for additional education and support for caseworkers in the child welfare system, so they can comply with the law, she said.

In 2012, the National Council on Disability, an independent federal agency, released “Rocking the Cradle,” a major report on the rights of parents with disabilities.

Among its findings: Removal rates among parents with a psychiatric disability were as high as 70 to 80 percent and among parents with an intellectual disability 40 to 80 percent. In families with a parent with a physical disability, 13 percent reported discriminatory treatment in custody cases, according to the report.

Shira Wakschlag, staff attorney at The Arc, a group that advocates for people with intellectual and developmental disabilities and their families, said the explicit language and examples in the guidance should help child welfare agencies and organizations. But advocates for people with disabilities continue to be a valuable resource, including in dire situations, she added.

“It’s still important, when you’re in a crisis or someone is at risk of losing their children, to connect with advocacy organizations,” she said.

HHS and DOJ said in a letter introducing the guidance that they have formed a partnership focused on protecting the safety and well-being of children while ensuring compliance with federal civil rights law.

Officials said they will release technical assistance later this year that addresses discrimination in the child welfare system based on “race, color and national origin.”

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