[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: 45CFR1386.19]



[Page 340-341]

 

                        TITLE 45--PUBLIC WELFARE

 

CHAPTER XIII--OFFICE OF HUMAN DEVELOPMENT SERVICES, DEPARTMENT OF HEALTH 

                           AND HUMAN SERVICES

 

PART 1386_FORMULA GRANT PROGRAMS--Table of Contents

 

  Subpart B_State System for Protection and Advocacy of the Rights of 

               Individuals with Developmental Disabilities

 

Sec. 1386.19  Definitions.





    As used in Sec. Sec. 1386.20, 1386.21, 1386.22 and 1386.25 of this 

part the following definitions apply:

    Abuse means any act or failure to act which was performed, or which 

was failed to be performed, knowingly, recklessly, or intentionally, and 

which caused, or may have caused, injury or death to an individual with 

developmental disabilities, and includes such acts as: Verbal, 

nonverbal, mental and emotional harassment; rape or sexual assault; 

striking; the use of excessive force when placing such an individual in 

bodily restraints; the use of bodily or chemical restraints which is not 

in compliance with Federal and State



[[Page 341]]



laws and regulations or any other practice which is likely to cause 

immediate physical or psychological harm or result in long term harm if 

such practices continue.

    Complaint includes, but is not limited to any report or 

communication, whether formal or informal, written or oral, received by 

the system including media accounts, newspaper articles, telephone calls 

(including anonymous calls), from any source alleging abuse or neglect 

of an individual with a developmental disability.

    Designating Official means the Governor or other State official, who 

is empowered by the Governor or State legislature to designate the State 

official or public or private agency to be accountable for the proper 

use of funds by and conduct of the State Protection and Advocacy agency.

    Facility includes any setting that provides care, treatment, 

services and habilitation, even if only ``as needed'' or under a 

contractual arrangement. Facilities include, but are not limited to the 

following:

    Community living arrangements (e.g., group homes, board and care 

homes, individual residences and apartments), day programs, juvenile 

detention centers, hospitals, nursing homes, homeless shelters, jails 

and prisons.

    Full Investigation means access to facilities, clients and records 

authorized under these regulations, that is necessary for a protection 

and advocacy (P&A) system to make a determination about whether alleged 

or suspected instances of abuse and neglect are taking place or have 

taken place. Full investigations may be conducted independently or in 

cooperation with other agencies authorized to conduct similar 

investigations.

    Legal Guardian, conservator and legal representative all mean an 

individual appointed and regularly reviewed by a State court or agency 

empowered under State law to appoint and review such officers and having 

authority to make all decisions on behalf of individuals with 

developmental disabilities. It does not include persons acting only as a 

representative payee, person acting only to handle financial payments, 

attorneys or other persons acting on behalf of an individual with 

developmental disabilities only in individual legal matters, or 

officials responsible for the provision of treatment or habilitation 

services to an individual with developmental disabilities or their 

designees.

    Neglect means a negligent act or omission by an individual 

responsible for providing treatment or habilitation services which 

caused or may have caused injury or death to an individual with 

developmental disabilities or which placed an individual with 

developmental disabilities at risk of injury or death, and includes acts 

or omissions such as failure to: establish or carry out an appropriate 

individual program plan or treatment plan (including a discharge plan); 

provide adequate nutrition, clothing, or health care to an individual 

with developmental disabilities; provide a safe environment which also 

includes failure to maintain adequate numbers of trained staff.

    Probable cause means a reasonable ground for belief that an 

individual with developmental disabilities has been, or may be, subject 

to abuse or neglect. The individual making such determination may base 

the decision on reasonable inferences drawn from his or her experience 

or training regarding similar incidents, conditions or problems that are 

usually associated with abuse or neglect.



[61 FR 51155, Sept. 30, 1996]