[Code of Federal Regulations]
[Title 45, Volume 4]
[Revised as of October 1, 2007]
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]