Sep 3, 2009
I received a great question and comment to my post from last May Toileting Assistance in Child Care and the ADA . That post discussed the requirements under Title III of the ADA to provide toileting assistance to children with disabilities in privately operated day care programs. Yesterday a reader asked whether similar rules apply to public preschool and after school day care programs. The answer is yes.
Title II of the ADA requires that state and local governmental entities provide equal access to programs and services to qualified persons with disabilities. Public schools are covered by Title II and their before and after school child care programs are also covered. Section 504 of the Rehabilitation Act also requires equal access to public school services for children with disabilities. Equal access includes equal access to the before and after school child care programs operated by the public schools. The school must consider providing reasonable accommodations to ensure a child with a disability has equal access to the before or after school child care program.
For example, in an Office for Civil Rights (OCR) decision Chattahoochee County (GA) School District [see 6 ECLPR (Early Childhood Law and Policy Reporter) 26 (OCR March 5, 2008)], OCR found a school district in violation of 504 because the school district asked a preschooler’s grandmother to pay for an aide to accompany the child to an after-school daycare program. The child had cerebral palsy and had difficulties walking, eating, and toileting. The school district claimed it could not afford the additional expense involved in providing the aide.
The Office for Civil Rights determined that the district had a duty to provide related aids and services unless to do so would fundamentally alter the nature of the program or create an undue burden. OCR first determined that the presence of an additional staff member to assist the child would not fundamentally alter the day care program. Then OCR determined that the district could not show that hiring an aide would create an undue hardship. The Office for Civil Rights found that the cost of an additional staff person to assist the child was only $40 to $48 a day and was not an undue financial burden. So, the school district violated 504 and Title II of the ADA when it required the grandmother to pay for an aide to assist the child with toileting. Note that in determining whether it was an undue hardship for the school district to provide the toileting assistance for the child, OCR compares the cost of the assistance to the budget for the entire school district. In that light, an accommodation would have to be very costly to be considered an undue hardship on the school district.
