# 148

DJ 202-PL-681 December 8, 1994

III-1.2000
III-1.5000
III-4.2000
III-4.1400
III-4.2600

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