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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 whose 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.
Sincerely,
John L. Wodatch
Chief
Public Access Section
01-03502