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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
www.michedlawcenter.com on the “useful links” page.
John Brower, JD
Education Law Center, PLLC
www.michedlawcenter.com
Education Law Center, PLLC · 810-227-9850
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www.michedlawcenter.com
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