JUL 31 1992







The Honorable Joseph R. Biden, Jr.
United States Senate
221 Russell Senate Office Building
Washington, D.C. 20510

Dear Senator Biden:

     This letter is in response to your inquiry on behalf of your
constituent, Marsha Hitch, who has inquired whether the Americans
with Disabilities Act (ADA) precludes her from excluding children
with HIV or AIDS from her day care center.

     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 your constituent in understanding the ADA's
requirements. However, it does not constitute a legal
interpretation and it is not binding on the Department.

     Title III of the ADA prohibits discrimination against
persons with disabilities in public accommodations, including day
care centers. HIV disease is specifically mentioned in the title
III regulations as a disability within the meaning of the ADA.
Thus, exclusion from a day care center on the basis of HIV is a
violation of the ADA, unless the participation of such individual
poses a direct threat (significant risk) to the health or safety
of others that cannot be eliminated by a policy or procedural
modification. Please note that under this exception an
individual may be excluded on the basis of disability only if he
or she poses a direct threat to others. Thus, a child with HIV
may not be excluded from a day care center on the basis of the
risk to that child of acquiring infections from other children.


cc: Records, Chrono, Wodatch, Novich, McDowney, FOIA, Library.
    Udd:Novich:cong.biden.ltr









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     Your constituent also expressed concern about admitting
children infected with HIV because of a gap for HIV-related
accidents in her insurance coverage. The title III regulations
specifically prohibit public accommodations from excluding people
with disabilities on the basis of limitations in insurance
coverage.

     Enclosed is a copy of the title III regulations. You may
refer to Section 36.104 at page 35593 and pages 35548-35549;
Section 36.208 at pages 35595-35596 and 35560-35561; Section
36.212 at page 35596 and pages 35562-35563, where the regulatory
provisions relating to the above discussion appear.

     I hope this information will be useful to you in responding
to your constituent.

                              Sincerely,




                            John R. Dunne
                      Assistant Attorney General
                         Civil Rights Division

Enclosure

























01-01085
                         Marsha Hitch Day Care
                            Rd. 2 Box 117 B
                          Dagsboro, DE 19939
                            (302) 539-3618



                                        June 1, 1992


Senator Joseph Biden
221 Russell Senate Office
Washington DC, 20510

Dear Senator Biden,

     I'm writing this letter in response to a phone call from
your Washington office in April. The call was in regards to
a preceding call I placed in February stating my concerns on
Public Law 101-336 also known as The Disabilities Act which
states under Title III, 7K that people with disabilities in-
cluding HIV and AIDS Persons are to be permitted in Day Care.

     My first concern is looking at HIV or AIDS as a disability.
I am not qualified as a Medical Person to care for an HIV or AIDS
infected child and do not understand why a child with a weak
immune system should be subjected to such risk. Most illnesses
are not known for 24-48 hours before the onset of infection.
For example; strep throat, pneumonia, chicken pox, influenza
and/or viruses (which can not be treated with most medications).
This is not a risk free situation for an HIV or AIDS child.

     My second concern arose when I tried to obtain Liability
Insurance to cover my Day Care business should an AIDS related
incident occur resulting in a law suit. All Insurance agents
I contacted stated they would not cover such an incident because
HIV and AIDS is classified under the Communicable Disease Clause.
On one hand I have the Federal Government saying I must care for
these children because it isn't a Communicable Disease and on
the other hand the Insurance Companies say it is. Where does
this leave me?

     Thank you for taking time to listen to and investigate my
concerns. I await your solution to this dilemma.

                              Sincerely,



                              Marsha Hitch
                              Director

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