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Ask the Attorney with John Brower, J.D.

Question: My child is a special education student and in a full day Kindergarten program where one-half of the day is spent in a day care program operated by the school district. The day care program is now refusing to allow my child to attend their program claiming that my child must be fully toilet trained. Can they do this?


Answer: If the child has an IEP that requires attendance in any school sponsored program, the program must accept the child and make whatever accommodations are needed to allow the disabled child to attend. Such accommodations and services could include a health aide for assistance with toileting, etc.

Further, any public entity that receives federal funds is required by §504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act not to discriminate against persons with disabilities. As your child is eligible under IDEA for special education services, your child is also considered a disabled person under §504 and the Title II of the ADA.

§504 and the ADA are enforced by the federal Office for Civil Rights (OCR). They generally require that day care programs that directly or indirectly receive federal fund provide day care services in a manner that takes into account the needs of students with disabilities. If a parent makes a formal complaint to the regional OCR office, be aware that the school’s likely defense would be that they require all children to be toilet trained, and therefore your child is “not otherwise qualified” to attend. They may also claim that requiring the staff to attend to your child’s toileting needs would have the effect of “fundamentally altering” the nature of the day care program, which at times can be a justification for avoiding accommodations for the disabled.

Therefore, you have two administrative methods available to address your concerns. One would be to file a written IDEA based administrative complaint with your ISD’s Compliance Officer claiming that your child’s IEP is not being implemented. The other is a §504/ADA based written complaint to OCR based on the failure of the school’s day care to accommodate your child’s disabilities. Information of filing an OCR complaint is available at the Education Law Center web site at on the “useful links” page.


John Brower, JD
Education Law Center, PLLC

Education Law Center, PLLC · 810-227-9850 · 

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