May 14, 2009
After my post yesterday on Child Care and the ADA I received a very good question regarding child care programs providing assistance with toileting for children with disabilities who use "pull ups". The question also raised issues regarding serving older children with disabilities who needed toileting assistance or diapering with much younger children. I thought the issue merited an additional post.
The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination against persons with disabilities. Title III of the ADA prohibits discrimination by privately operated public accommodations. Private child care providers are covered by Title III.
Whether the ADA requires a child care program to provide toileting assistance to a child with a disability generally depends on whether the program provides diapering or toileting assistance to children without disabilities. Many programs provide toileting assistance to younger children. If the program provides toileting or diapering assistance to younger children, it must also provide that assistance to older children with disabilities, when the staff do not have to leave other children unattended to provide that assistance. If an older child needed toileting assistance because of having a disability, it would NOT be appropriate for the child care provider to generally serve the older child along side younger children. The older child with a disability should be included in an age appropriate program with peers close to the child’s own age.
Moreover, the child care provider must also provide toileting assistance or diapering to young children with disabilities who may need it more often than other children their age. Generally, toileting assistance is considered a “personal service” under the ADA and usually not a required service. But, as noted in the examples above, child care providers must consider modifying their policies if a child needs toileting assistance due to a disability. Some children with disabilities need assistance transferring to and from the toilet. Helping children with disabilities transfer from the toilet is not a “personal service” and is required. If a child care provider is required to provide toileting assistance or diapering to a child, it cannot charge an additional fee for that service.
Child care programs that do not diaper or provide toileting assistance to any children must still consider modifying that policy to assist children with disabilities. The Department of Justice in its publication Commonly Asked Questions About Child Care and the ADA says:
“To determine when it is a reasonable modification to provide diapering for an older child who needs diapering because of a disability and a center does not normally provide diapering, the center should consider factors including, but not limited to, (1) whether other non-disabled children are young enough to need intermittent toileting assistance, when for instance, they have accidents; (2) whether providing toileting assistance or diapering on a regular basis would require a child care provider to leave other children unattended; and (3) whether the center would have to purchase diapering tables or other equipment. If the program never provides toileting assistance to any child, however, then such a personal service would not be required for a child with a disability.” (emphasis supplied)
The Department of Justice, however, goes on to say that even if toileting assistance is not required, the program cannot exclude a child from the program if other arrangements could be made such as a parent or personal assistant coming in and providing the assistance.
In summary, if the program provides toileting assistance or diapering to younger children, it will likely be required to provide that assistance to older children with disabilities.
