Toileting Assistance in Child Care and the ADA

     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.

 

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11 Responses

  1. I am an attorney in California and I was wondering if the same rules around toileting apply in facilities regulated under Title II of the ADA. Specifically, these are child care/preschools run by school districts (separate from Special Education programs). I know the toileting assistance is available to children in Special Education preschools but there have been difficulties with typical child care programs and toileting for older children with disabilities.

    Thank you in advance for your reply.

    • Hi Claire and thank you for your comment. Yes, similar rules apply to toileting students who are in preschool and after school programs operated by school districts. Actually, Tilte II and 504 have stronger requirements in this area. As you stated Title II of the ADA and 504 apply to the public schools. 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 it 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. OCR determined that the district had a duty to provide related aides and services unless to do so would fundamentally alter the nature of the program or create an undue burden. OCR then determined that the district hiring an aide would not create a hardship; paying the aide $40 to $48 a day was not an undue financial burden. So, requiring the grandmother to pay for an aide to assist the child with toileting was a violation of 504 and Title II. Thanks again for your great question.

  2. […] 3, 2009 by randychapman      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 […]

  3. My wife is a special education teacher in CT. She recently became involved in a case of a deaf/mentally retarded 15 yo boy who was never toilet trained. He has been in state custody his whole life. He has always attended the same school. He lives in a group home. The group home/school said he could not be trained because he “didn’t care about having a dirty diaper. After 12 days, my wife has him in underwear and remaining clean/dry for the last 3 days. He is basically 75% trip trained. She was just informed that she is no longer going to be working with the child that his “aides” will be training him. She has worked with both of these aides, neither has a HS Diploma and neither will touch the child. The group home’s plan is to put him back in diapers and continue the training that way. TOILET TRAINING WAS NEVER A GOAL ON HIS IEP. Is there any law that mandates this training be done by a certified teacher? Oh, by the way my wife is fluent in sign language and that is how she communicates with the child. Neither aid knows sign language. The plan is to move the child to a less restrictive environment when the training is done. The group home is not interested in seeing him leave and will thwart the training.

    PLEASE HELP THIS CHILD.

  4. Wow, I am so delighted to find this site. I have a few follow-up questions: Would a YMCA that is offering a camp for children ages 7-14 with special needs be required to provide toileting assistance if it provides toileting assistance as part of its child-care program for typical children, ages 6 weeks through-pre-K? While the camp and child-care program appear to be separate programs, I think the child-care program essentially serves as a camp for the the younger sect during the summer. Thanks in advance for your help.

    • I think the camp might very well be required to offer toileting assistance to special needs children if it offers toileting assistance to other children, albeit children of different ages..

  5. Hi Randy –

    My child with DS is 6 yrs old and in 1st grade. She started toilet training, and is showing success at home. In the school there has been difficulty. We believe it is due to lack of an aide or consistency. The SpEd teacher is responsible for multiple children and cannot take her on a set schedule as would be best.

    She requires the sensory feedback of underwear (with plastic pants) to help her gain awareness of her wetness.

    The school forced her back into pull-ups, which upset her. We asked that they not put her in pull-ups. The school held an IEP meeting and said she needs to be in pull-ups for sanitary reasons or she is not allowed back. We have been forced to keep her home to maintain her dignity and self-respect. Has the school violated the ADA? She has an IEP goal that says she will tell the teacher when she needs to go, but we do not think she can make progress on this without the sensory feedback of wet clothing. The school seems to think pull-ups are equivalent and will “habit train” her, contrary to what most parents in the DS community experience.

    Thank you

    • Hi Brad,
      I think you should either purchase and independent evaluation regarding toilet training for your daughter or if the district has not done such an evaluation request they provide one. Search my blog and you’ll find an article on independent evaluations. We need a recommendation regarding the staff required and the issue with the plastic pants . Hopefully, that evaluation will help.

      • Would a note from a doctor or a behaviorist stating the need for cotton underwear due to sensory or low tone work?

  6. Thank you Randy!

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