Copyright 1996 The Daily Record Co. 

The Daily Record (Baltimore, MD.)

October 18, 1996, Friday

SECTION: Pg. 17

LENGTH: 621 words

HEADLINE: Day-Care Center Facing Suit On Child's Disability Claim Attention Deficit/Hyperactivity Disorder Brought Center to Deny Boy's Admission, Parents Say in Americans With Disabilities Act Lawsuit

BYLINE: By Catherine M. Brennan; Daily Record Legal Affairs Writer

BODY:

A Sykesville-based day-care center is fending off allegations that it refused to allow an eight-year-old boy to enroll in its after-school program because of the child's hyperactivity.

ABC Care Inc. stands accused of denying the child permission to participate in its day-care program because of his attention deficit/hyperactivity disorder (ADHD), a diagnosis characterized by an inability to concentrate and poor impulse control.

"It's a straightforward case of outright discrimination," said Beth Pepper, who filed the lawsuit under the Americans with Disabilities Act (ADA) on behalf of the child -- identified only as J.H. in court documents -- and his parents.

The identities of the child and parents will remain anonymous by order of the court, Pepper said.

"It's a disgrace that this family has had to file a lawsuit to have their child included in a day-care program," she added.

Under the ADA, so-called "public accommodations," including day-care centers, must make reasonable modifications in their policies to guarantee that individuals with disabilities have access to them.

Phone calls to several of ABC Care's offices in Carroll County were not returned.

J.H. -- who attends regular classes at St. John's School, a Catholic school in Westminster -- began participating in the ABC Care program located at the school in September 1994 when he entered kindergarten.

According to the complaint filed Wednesday, J.H.'s enrollment in the ABC Care program benefited him psychologically because he was with children he knew from his regular school program at St. John's.

Additionally, the location of the day-care in the school made the program physically safe for J.H. because he could be escorted directly to ABC without having to leave the building.

And J.H. allegedly did quite well at the day-care from September 1994 through September 1995, getting along well with staff and children.

ABC Care gave no indication that it believed that J.H. was inappropriate for the day-care program.

"While J.H.'s disability may have caused him on occasion not to listen to staff or follow instructions promptly, the staff used appropriate education techniques, such as time-outs, to redirect him," Pepper and co-counsel, Greenbelt attorney Stewart B. Oneglia, wrote in the complaint.

"There's no allegation that the child is violent," Pepper said yesterday. "This child is completely appropriate for the program."

But when J.H. tried to participate in the day-care program for the 1995-1996 school year, ABC Care staff shut him out, saying that they no longer wanted to address J.H.'s specific needs, particularly the occasional need for a time-out to get his ADHD in control.

In January 1996, J.H.'s parents asked ABC Care to readmit J.H., saying that their son was now taking Ritalin to mitigate his ADHD.

But ABC allegedly remained steadfast in their refusal to accommodate J.H., falsely telling his parents that there was no more openings in the program, the complaint states.

Because of this, J.H.'s parents, David and Marsha H., have been forced to provide their son with piecemeal after-school care which has not provided the consistency and peer interaction that J.H. needs, the complaint alleges.

"ABC Care's refusal to allow J.H. to participate in its program has stigmatized him and set him apart from the other children in his class," the complaint alleges.

J.H.'s pediatrician, Dr. Barnaby F. Starr, added in an affidavit filed with the complaint that J.H.'s classmates tease him because of ABC's denial of access.

"They are aware that J.H. is being treated differently and subject him to teasing and taunts that are particularly painful to a child with this disability," Starr wrote.

LOAD-DATE: October 22, 1996