[Code of Federal Regulations]

[Title 45, Volume 4]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 45CFR1340.15]



[Page 248-250]

 

                        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



[[Page 250]]



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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