[Code of Federal Regulations]
[Title 45, Volume 4]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 45CFR1340.15]

[Page 298-300]
 
                        TITLE 45--PUBLIC WELFARE
 
CHAPTER XIII--OFFICE OF HUMAN DEVELOPMENT SERVICES, DEPARTMENT OF HEALTH 
                           AND HUMAN SERVICES
 
PART 1340--CHILD ABUSE AND NEGLECT PREVENTION AND TREATMENT--Table of Contents
 
                       Subpart B--Grants to States
 
Sec. 1340.15  Services and treatment for disabled infants.

    (a) Purpose. The regulations in this section implement certain 
provisions of the Act, including section 107(b)(10)

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governing the protection and care of disabled infants with life-
threatening conditions.
    (b) Definitions. (1) The term ``medical neglect'' means the failure 
to provide adequate medical care in the context of the definitions of 
``child abuse and neglect'' in section 113 of the Act and Sec. 1340.2(d) 
of this part. The term ``medical neglect'' includes, but is not limited 
to, the withholding of medically indicated treatment from a disabled 
infant with a life-threatening condition.
    (2) The term ``withholding of medically indicated treatment'' means 
the failure to respond to the infant's life-threatening conditions by 
providing treatment (including appropriate nutrition, hydration, and 
medication) which, in the treating physician's (or physicians') 
reasonable medical judgment, will be most likely to be effective in 
ameliorating or correcting all such conditions, except that the term 
does not include the failure to provide treatment (other than 
appropriate nutrition, hydration, or medication) to an infant when, in 
the treating physician's (or physicians') reasonable medical judgment 
any of the following circumstances apply:
    (i) The infant is chronically and irreversibly comatose:
    (ii) The provision of such treatment would merely prolong dying, not 
be effective in ameliorating or correcting all of the infant's life-
threatening conditions, or otherwise be futile in terms of the survival 
of the infant; or
    (iii) The provision of such treatment would be virtually futile in 
terms of the survival of the infant and the treatment itself under such 
circumstances would be inhumane.
    (3) Following are definitions of terms used in paragraph (b)(2) of 
this section:
    (i) The term ``infant'' means an infant less than one year of age. 
The reference to less than one year of age shall not be construed to 
imply that treatment should be changed or discontinued when an infant 
reaches one year of age, or to affect or limit any existing protections 
available under State laws regarding medical neglect of children over 
one year of age. In addition to their applicability to infants less than 
one year of age, the standards set forth in paragraph (b)(2) of this 
section should be consulted thoroughly in the evaluation of any issue of 
medical neglect involving an infant older than one year of age who has 
been continuously hospitalized since birth, who was born extremely 
prematurely, or who has a long-term disability.
    (ii) The term ``reasonable medical judgment'' means a medical 
judgment that would be made by a reasonably prudent physician, 
knowledgeable about the case and the treatment possibilities with 
respect to the medical conditions involved.
    (c) Eligibility requirements. (1) In addition to the other 
eligibility requirements set forth in this part, to qualify for a basic 
State grant under section 107(b) of the Act, a State must have programs, 
procedures, or both, in place within the State's child protective 
service system for the purpose of responding to the reporting of medical 
neglect, including instances of withholding of medically indicated 
treatment from disabled infants with life-threatening conditions.
    (2) These programs and/or procedures must provide for:
    (i) Coordination and consultation with individuals designated by and 
within appropriate health care facilities;
    (ii) Prompt notification by individuals designated by and within 
appropriate health care facilities of cases of suspected medical neglect 
(including instances of the withholding of medically indicated treatment 
from disabled infants with life-threatening conditions); and
    (iii) The authority, under State law, for the State child protective 
service system to pursue any legal remedies, including the authority to 
initiate legal proceedings in a court of competent jurisdiction, as may 
be necessary to prevent the withholding of medically indicated treatment 
from disabled infants with life-threatening conditions.
    (3) The programs and/or procedures must specify that the child 
protective services system will prompty contact each health care 
facility to obtain the name, title, and telephone number of

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the individual(s) designated by such facility for the purpose of the 
coordination, consultation, and notification activities identified in 
paragraph (c)(2) of this section, and will at least annually recontact 
each health care facility to obtain any changes in the designations.
    (4) These programs and/or procedures must be in writing and must 
conform with the requirements of section 107(b) of the Act and 
Sec. 1340.14 of this part. In connection with the requirement of 
conformity with the requirements of section 107(b) of the Act and 
Sec. 1340.14 of this part, the programs and/or procedures must specify 
the procedures the child protective services system will follow to 
obtain, in a manner consistent with State law:
    (i) Access to medical records and/or other pertinent information 
when such access is necessary to assure an appropriate investigation of 
a report of medical neglect (including instances of withholding of 
medically indicated treatment from disabled infants with life 
threatening conditions); and
    (ii) A court order for an independent medical examination of the 
infant, or otherwise effect such an examination in accordance with 
processes established under State law, when necessary to assure an 
appropriate resolution of a report of medical neglect (including 
instances of withholding of medically indicated treatment from disabled 
infants with life threatening conditions).
    (5) The eligibility requirements contained in this section shall be 
effective October 9, 1985.
    (d) Documenting eligibility. (1) In addition to the information and 
documentation required by and pursuant to Sec. 1340.12 (b) and (c), each 
State must submit with its application for a basic State grant 
sufficient information and documentation to permit the Commissioner to 
find that the State is in compliance with the eligibility requirements 
set forth in paragraph (c) of this section.
    (2) This information and documentation shall include:
    (i) A copy of the written programs and/or procedures established by, 
and followed within, the State for the purpose of responding to the 
reporting of medical neglect, including instances of withholding of 
medically indicated treatment from disabled infants with life-
threatening conditions:
    (ii) Documentation that the State has authority, under State law, 
for the State child protective service system to pursue any legal 
remedies, including the authority to inititate legal proceedings in a 
court of competent jurisdiction, as may be necessary to prevent the 
withholding of medically indicated treatment from disabled infants with 
life-threatening conditions. This documentation shall consist of:
    (A) A copy of the applicable provisions of State statute(s); or
    (B) A copy of the applicable provisions of State rules or 
regulations, along with a copy of the State statutory provisions that 
provide the authority for such rules or regulations; or
    (C) A copy of an official, numbered opinion of the Attorney General 
of the State that so provides, along with a copy of the applicable 
provisions of the State statute that provides a basis for the opinion, 
and a certification that the official opinion has been distributed to 
interested parties within the State, at least including all hospitals; 
and
    (iii) Such other information and documentation as the Commissioner 
may require.
    (e) Regulatory construction. (1) No provision of this section or 
part shall be construed to affect any right, protection, procedures, or 
requirement under 45 CFR Part 84, Nondiscrimination in the Basis of 
Handicap in Programs and Activities Receiving or Benefiting from Federal 
Financial Assistance.
    (2) No provision of this section or part may be so construed as to 
authorize the Secretary or any other governmental entity to establish 
standards prescribing specific medical treatments for specific 
conditions, except to the extent that such standards are authorized by 
other laws or regulations.

(Approved by the Office of Management and Budget under control number 
0980-0165)

[50 FR 14887, April 15, 1985, as amended at 52 FR 3995, Feb. 6, 1987; 55 
FR 27639, July 5, 1990]

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