The ADA/504 and Assistance in Toileting in Public Before School and After School Programs

     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.

2 Responses

  1. HI Randy; I have a mulitply disabled child who uses an adaptive toilet seat to toilet. He uses eye gaze technology to speak. He has the ability to vocalize or use his computer to go to a personal needs page and request to be changed or to use the toilet. At a meeting in Sept. I discovered the staff put him on a 2 hr toileting program. I asked if they asked him if he had to go. They said yes. I asked if he said “no” if they took him anyway, they said “yes”. After being changed without asking to be changed he had the courage to use his computer to say he needed to use the toilet. The aid asked what she should do. A therapist that was there told her to toilet him and of course he went. Astounded that they took a skill away from him and put him on a 2 hr program against his will and without our knowledge; we went to the district for help. There is an investigation and much more to share…would you please contact me? I think we could use your help!

    • Thanks for contacting me Barb. Someone from our office contact you. We can only provide direct assistance in Colorado, but we can offer some technical assistance if you are in another state or provide a referral.

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