# 148

DJ 202-PL-681 III-1.2000 III-1.5000 III-4.2000 III-4.1400 III-4.2600

December 8, 1994

Ms. Abby J. Cohen Managing Attorney Child Care Law Center 22 Second Street, Fifth Floor San Francisco, CA 94105 Dear Ms. Cohen: This letter is in response to your inquiry into the applicability of title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. ​ 12181-89, to child care centers. We apologize for the delay in responding to your request. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. This letter provides informal guidance to assist you in understanding the ADA's requirements. However, it does not constitute a legal interpretation or legal advice and it is not binding on the Department of Justice. You first inquired about small child care centers, such as home-based child care programs, which, because of their small size, may not be licensed or regulated by the state. You ask what level of impact is required before a child care facility affects interstate commerce. Title III has no exemption for small facilities and size alone is not determinative of whether a particular facility affects interstate commerce. Size, however, would likely be one of the factors the court would take into account in determining whether a facility is involved in interstate commerce along with other such factors as the location

of the facility, whether the facility offered to serve interstate travelers, whether products that had traveled in interstate commerce were used in the program, the extent and nature of the facility's advertising, and whether the facility was part of an industry that, as a whole, affects interstate commerce. Your next inquiry concerns the title III exemption for religious organizations. You note that the Preamble to the title III regulation states as follows: When a church rents meeting space, which is not a place of worship, to a local community group or to a private independent day care center, the ADA applies to the activities of the local community group and day care center if a lease exists and consideration is paid. You are correct that all three of these conditions (a lease, payment of consideration, and space not used for worship) are required for title III coverage of an entity using space in a building owned by a religious organization. Parts of a religious organization's facility that are used for meetings, classes, social events and the like would not be covered by title III if used exclusively by the religious organization. But where such areas are leased by a child care facility not owned or operated by the religious organization, title III applies to the child care facility but not to the religious organization as landlord. Next, you inquire whether child care centers can maintain a fee structure based upon the level of service to be provided or based upon developmental abilities, without regard to the age of the child. Title III requires public accommodations to make reasonable modifications in policies, procedures, and practices where necessary to insure that individuals with disabilities have an equal opportunity to enjoy the goods and services of the public accommodation. No surcharge may be imposed for such modifications. In our view, a fee structure that charges extra for services that are needed only by children with disabilities - the extra care and supervision you describe -- is discriminatory unless providing such additional service is not a "reasonable" modification. Next, you inquire whether it is permissible to maintain an admissions requirement that children be toilet trained. Programs are not required to abandon such a requirement altogether, but must make an exception for children who are not toilet trained

due to their disabilities. This does necessarily mean, however, that diapering service must be provided for such children (see discussion below). Requiring parents to identify their children as having disabilities in order to obtain a modifications of general rules is permissible. You also inquire as to the breadth with which one should read the requirement to provide personal services to persons with disabilities when they are customarily provided to others. For instance, you ask whether school age child care programs must provide diapering services to children with disabilities when they do not provide such extensive personal assistance with toileting but generally provide other types of personal care and supervision as an integral part of their work. Public accommodations must make reasonable modifications to their policies, practices, and procedures to accommodate persons with disabilities. In order to determine what modifications are reasonable, one may consider many factors including, but not limited to, the following: (1) whether other non-disabled children in the program are young enough to need intermittent toileting assistance when, for instance, they have accidents; (2) whether providing toileting assistance 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. Thus, where a program serves both infants (who require diapering) and school age children, it seems reasonable to provide diapering service for a school age child with a disability even if in another classroom. 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. Please keep in mind that even in these circumstances, the child could not be excluded from the program because he or she was not toilet trained although the program could impose a reasonable surcharge for providing diapering service. You next inquire about title III's direct threat defense and how a child care program may determine whether the child has a medical condition, such as active infectious tuberculosis, which poses a significant health risk to others. Child care providers may ask of all applicants whether a child has any diseases that are communicable through the type of incidental contact expected to occur in child care settings. Providers may also inquire about specific conditions, such as tuberculosis, that in fact, pose a direct threat. Medical experts may and should be

consulted if specific questions are to be asked, and care must be taken to insure that inquiries are made only about specific conditions that in fact pose a direct threat in the type of conditions present in the particular facility in question. As to whether centers may ask whether children have engaged in behavior that poses a direct threat to others, centers who wish to pose this question should exercise caution when doing so. Providers may not discriminate against a child who disability manifests itself in behavior which, while not dangerous, differs from that of his or her peers. Inquiries should focus narrowly on behaviors that currently pose a direct threat. Your final inquiry relates to title III's prohibition against surcharges. You ask whether child care providers may impose surcharges on the parents of children with disabilities for the additional services necessary to care for their children. Professionals who charge an hourly or daily fee for their services may do so even where it takes longer and thus costs more to service the needs of a person with a disability. In a child care setting, however, where all children are in the facility for the same number of hours, surcharges may not be imposed for providing extra or more time-consuming services if such services are a reasonable modification, that is, do not cause a fundamental alteration or undue burden for the provider. If you have further questions, you may wish to consult the Arc's All Kids Count, a guide to title III's obligations written especially for child care providers. The development and distribution of this guide was prepared under a grant from the Department of Justice. Copies are available for a nominal fee by calling (817) 261-6003 (voice) or (817) 277-0553 (TDD). You may also call the Department's toll-free ADA Information Line for further guidance, (800) 514-0301 (voice), or (800) 514-0383 (TDD). I hope this information is useful to you in understanding the requirements of the ADA. Sincerely,

John L. Wodatch Chief Public Access Section