Attorney General: Honorable Rose Alma Senatore, Department of Children and Youth Services , 1993-014 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

June 17, 1993

Honorable Rose Alma Senatore
Department of Children and Youth Services
170 Sigourney Street
Hartford, CT 06105

Dear Commissioner Senatore:

The Department of Health and Human Services (HHS) has asked for an opinion analyzing the Federal Child Abuse Prevention and Treatment Act (the Act) 42 U.S.C. 5101 and regulations issued under that Act in relation to state law, particularly Conn. Gen. Stat. l9a-570 et seq. Specifically, HHS questions whether Connecticut law meets the requirement imposed by the federal statutory mandates regarding critically-ill children. It is our conclusion that Connecticut's child abuse statutes have not been affected by subsequent state legislation authorizing removal of life support systems of incapacitated patients and therefore Connecticut's statutes continue to meet the federal mandate regarding the protection of abused and neglected children.

42 U.S.C. 5101 authorizes federal grants to states to implement child abuse and neglect prevention and treatment programs. To qualify for these funds, states must agree to carry out the requirements of the Act and related regulations. The principal requirement is that states accepting these funds must agree to operate a child protective service agency that responds to reports of child abuse and neglect, as defined by federal law.

The term "child abuse and neglect", under federal law is defined as the "physical or mental injury, sexual abuse or exploitation, negligent treatment or maltreatment of a child...." 42 U.S.C. 5102. HHS regulations specify that "negligent treatment or maltreatment" is failure to provide adequate food, clothing, shelter or medical care. 45 C.F.R. 1340.2(d)(3)(1).

Under Connecticut law, child abuse and neglect must be reported to and investigated by the Department of Children and Youth Services (DCYS). Conn. Gen. Stat. 17a-101 requires "certain professional persons" namely physicians, surgeons, nurses, medical examiners, dentists, psychologists, teachers, guidance counselors, principals, social workers, police officers, among others, to notify DCYS whenever they have "reasonable cause to suspect or believe that any child under the age of eighteen ... is in a condition which is the result of maltreatment such as, but not limited to, malnutrition, sexual abuse, sexual exploitation, deprivation of necessities, emotional maltreatment, or cruel punishment, or has been neglected as defined by section 46b-120....'"1 When DCYS is advised of, and substantiates a complaint that a child has been denied proper medical care such that a child's well-being is in jeopardy, the agency is empowered by Conn. Gen. Stat. 17a-l0l to take steps, including taking emergency custody of a child, in order to protect the child's safety and welfare.

HHS has raised questions concerning Conn. Gen. Stat. 19a-570 et seq., as amended by Public Act 91-283 which is known as the Living Will Act. The first question relates to whether Sec. l9a-571, as amended, conflicts with the amendments to the Child Abuse Prevention & Treatment Act, enacted in l984, which concern medical neglect of disabled infants. Secondly, the federal agency questions whether the Living Will Act affects the state's ability to protect children of all ages from medical neglect.

With respect to disabled infants, section 5106a of the Child Abuse Prevention & Treatment Act was added in l984 and requires states accepting federal funds to

have in place 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), procedures or programs or both (within the State child protective services system), to provide for -

(A) coordination and consultation with individuals designated by and within appropriate health-care facilities;

(B) prompt notification by individuals designated by and within appropriate health-care facilities of cases of suspected medical neglect (including instances of withholding of medically-indicated treatment from disabled infants with life-threatening conditions); and

(C) 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.

The l984 amendment also added a definition of the term "withholding of medically indicated treatment." As used in the Act that term means 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 which, in the treating physician's or physicians' reasonable medical judgment -

(A) the infant is chronically and irreversibly comatose;

(B) the provision of such treatment would

(i) merely prolong dying;

(ii) not be effective in ameliorating or correcting all of the infant's life-threatening conditions; or

(iii) otherwise be futile in terms of the survival of the infant; or

(C) 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.

42 U.S.C. 5102.

In 1985, the Department of Health and Human Services adopted regulations, 45 C.F.R. 1340 et seq., relating to medical neglect, particularly with respect to disabled infants2 with life-threatening conditions. "Medical neglect" is defined as "the failure to provide adequate medical care in the context of the definitions of 'child abuse and neglect' in Section 3 of the Act and 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." 45 C.F.R. 1340.15(b)(1)

Thus states accepting federal funds must have protective service programs in place to investigate and take appropriate action whenever an infant is denied medical treatment, unless the treating physician, exercising reasonable medical judgment, concludes either the child is chronically and irreversibly comatose, or that treatment would be essentially futile.

Furthermore, under the amended federal law, states accepting federal funds must be able to protect disabled infants with life-threatening conditions when they are denied appropriate nutrition, hydration and medication. In the interpretative guidelines that HHS appended to its regulations, the Department explains "it should be clearly recognized that the statute is completely unequivocal in requiring that all infants receive 'appropriate nutrition, hydration or medication' regardless of their condition or prognosis." 50 Fed. Reg. 14892 (April 15, l992). Furthermore, the legislative history of the l984 amendment to the Act indicates a Congressional concern that, regardless of the infant's condition, a disabled infant should be entitled to adequate nutrition, hydration, and medication. The Senate report that recommended the passage of the amendment explained that "S.l003 authorizes the secretary [of HHS] to issue regulations, if deemed appropriate, concerning the establishment of local decision-making procedures with regard to seriously ill handicapped infants which procedures will at a minimum guarantee that each health care facility will provide such infants proper feeding and appropriate medications for pain and sedation. The Committee recognizes that there are many ways to provide nutrition in addition to oral feedings, and health care professionals must provide nourishment to the infants in the medically appropriate manner." S. Rep. No. 246, 98th Cong., 2nd Sess. 1, reprinted in l983 U.S. Code Cong. & Admin. News 2918, 2936.3

Connecticut is authorized under Conn. Gen. Stat. 17a-101, described supra, to protect such disabled infants from medical neglect. Nothing in Conn. Gen. Stat. 19a-570 et seq. (the Living Will Act) prevents DCYS from taking such actions to assure these infants receive appropriate medical care as provided under federal law. The Living Will Act concerns the withholding of life support systems of an incapacitated patient determined to be in a terminal condition who has either executed a living will expressing the patient's wishes concerning the withholding of life support systems or has expressed their wishes to their guardian, next of kin or health care agent. The definition of life support system includes, in the context of this act, "artificial means of nutrition or hydration."

The Living Will Act was amended during the l99l Special Session of the General Assembly, P.A. 9l-ll was enacted which added Conn. Gen. Stat. l9a-571 (c). That subsection provides "[i]n the case of an infant, as defined in 45 C.F.R. l340.15(b), the physician or licensed medical facility shall comply with the provisions of C.F.R., l340.15(b)(2) in addition to the provision of [the Living Will Act]." As Senator Matthews explained when the amendment was passed, "[T]his section is in compliance with federal regulations and that was these particular children with [sic] ... they not be included in our definition of people who would come under the jurisdiction of the living will." 34 Senate Proceedings, Part 14, September 4, l991 p. 590. Thus for disabled infants with life-threatening conditions, the provisions of federal law, namely the Child Abuse Prevention and Treatment Act and related regulations, including the mandate that appropriate nutrition, hydration and medication be provided in all cases, will govern their medical treatment.

HHS also questions whether The Living Will Act impedes the state's ability to protect children, other than infants, who have been denied appropriate medical care. It is our conclusion that the Living Will Act has no adverse impact on the state's efforts to protect children from medical neglect. Nothing in the statutory scheme explicitly or implicitly prohibits the report or investigation of alleged medical neglect in such cases, nor does the Living Will Act prevent DCYS from taking steps to protect a child when medical neglect is substantiated. The Living Will Act addresses only the limited question of when a physician would be liable for disconnecting a life support system of an incapacitated patient. The statute provides immunity to such physicians but only when the following qualifications are satisfied:

1. The decision to withhold or remove such life support system is based on the best medical judgment of the attending physician in accordance with the usual and customarystandards of medical practice;

2. The attending physician qualified to make a neurological diagnosis who has examined the patient, deems the patient to be permanently unconscious; and

3. The attending physician has considered the patient's wishes concerning the withholding or withdrawal of life support systems.

Conn. Gen. Stat. l9a-571 (a).

The first two qualifications are medically-focused; namely the decision to remove life support must be based on the best medical judgment of the attending physician following usual and customary standards of medical practice and on the patient's irreversible terminal condition or permanent irreversible coma. Conn. Gen. Stat. l9a-57l defines terminal condition as "the final stage of an incurable or irreversible medical condition which, without the administration of a life support system, will result in death within a relatively short time, in the opinion of the attending physician." The third qualification requires the physican to take into consideration the wishes of the patient, as expressed either in the document prepared pursuant to Conn. Gen. Stat. l9a-575 (The Living Will), or from verbal expressions made by the patient. Only persons age 18 or older may prepare a "Living Will." In the case of a child, if the child's parent or guardian sought to terminate life support and that decision was both medically justified and following the child's stated wishes, the physician would not be liable for removing life support under the Living Will Act. The age and maturity of the child would certainly be a factor to be considered by a physician faced with a request to terminate life support. Notwithstanding, P.A. 91-283 does not affect the state's ability or mandate to investigate and protect children who have been denied appropriate medical care.

In summary, Connecticut is authorized and required by state law to investigate and intervene appropriately on behalf of an infant or child in any case of alleged medical neglect, as defined by federal and state law.

Please contact me if you have additional questions.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Susan T. Pearlman
Assistant Attorney General

RB/STP/gr


1 Sec. 17a-103 authorizes reporting by those individuals who are not mandated to report under 17a-ld and provides good faith immunity from liability for those non-mandated individuals.

2 The term "infant" was left undefined in the Act; HHS therefore added a definition in the regulations. The term "infant" means an infant less than one year of age. Furthermore, the regulations instruct that the standards be "consulted thoroughly in the evaluation of any 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." 45 C.F.R. 1340.15(b)(3).

3 In our view, the provision relating to "appropriate nutrition" must be considered as mandating that nutrition be provided in an appropriate manner in view of the infant's condition. Thus if an infant cannot be fed by mouth, intravenous or tube feeding should be considered appropriate nutrition.


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