Request By:
Honorable R. Hughes Walker
General Counsel
Cabinet for Human Resources
275 East Main Street
4-West
Frankfort, Kentucky 40621
Opinion
Opinion By: David L. Armstrong, Attorney General
As General Counsel for the Cabinet for Human Resources you have asked for the Office of the Attorney General to render an opinion concerning whether or not the Kentucky statutes place the Commonwealth of Kentucky in compliance with the 1984 Amendments to the Child Abuse and Neglect Act and more particularly the regulations promulgated under that act. (45 CFR § 1340.14 and 15) The regulations pertain to the reporting and investigation of the alleged medical neglect or withholding of medical care for infants in federally funded hospitals. The regulations require that the child protection agency (in this instance, Department for Social Services, Cabinet for Human Resources) be able to obtain necessary medical records from hospitals and that there is a provision for court intervention where necessary.
It is our opinion that Kentucky does have a statutory basis for complying with the above referred to regulation. Pertinent statutes are KRS 199.011(6) which defines abused and neglected child to include medical neglect and provides:
(6) "Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when his parent, guardian or other person who has the permanent or temporary care, custody or responsibility for the supervision custody or responsibility for the supervision of the child: inflicts or allows to be inflicted upon the child, physical or mental injury to the child by other than accidental means; creates or allows to be created a risk of physical or mental injury to the child by other than accidental means; commits or allows to be committed an act of sexual abuse upon the child; willfully abandons or exploits such child; does not provide the child with adequate care and supervision; food, clothing and shelter; education; or medical care necessary for the child's well-being; provided, however, that a parent or guardian legitimately practicing his religious beliefs who thereby does not provide specified medical treatment for a child, for that reason alone shall not be considered a negligent parent or guardian. This exception, however, shall not preclude a court from ordering that medical services be provided to the child, where his health requires it.
KRS 199.335(3) provides for the reporting of abused and neglected children and further requires the cooperation of any agency, institution or facility providing services to a child allegedly abused and neglected. This statute provides:
(3) A report shall be made immediately by telephone or otherwise to the department or its delegated representative. If the person making the report has reason to believe that immediate protection for the child is advisable, that person shall also make an oral report to an appropriate law enforcement agency. If the report is made to any agency other than the department, such agency shall promptly refer the report to the department. The report shall be followed by a written report within forty-eight (48) hours if so requested by the department. The department or its delegated representative shall upon the receipt of the initial report immediately send a report of suspected physical or sexual abuse to the appropriate law enforcement agency for any appropriate action. Such report shall contain the names and addresses of the child and his parents or other persons responsible for his care, if known, the child's age, the nature and extent of the child's abuse or neglect (including any evidence of previous abuse and neglect) to this child or his siblings; the name and address of the person responsible for the abuse or neglect; and any other information that the person making the report believes may be helpful in the furtherance of the purpose of this section. The department may request and shall receive from any agency of the state or any other agency, institution or facility providing services to the child or his family, such cooperation, assistance and information as will enable the department to fulfill its responsibilities under this section.
KRS 199.335(8) requires the investigation by the Department for Social Services, Cabinet for Human Resources or its delegated representative of reports of abused and neglected children. This statute is as follows:
(8) Upon receipt of a report of an abused or neglected child pursuant to this section, the department as the designated agency or its delegated representative shall initiate a prompt investigation, take necessary action and shall offer protective services toward safeguarding the welfare of the child, preventing further abuse or neglect of the child or any other child under the same care, preserve and strengthen family like, where possible, by enhancing parental capacity for adequate child care.
KRS 208.160 provides for court ordered medical treatment. This statute is as follows:
(1) When the health or physical condition of any child before the juvenile session of district court requires it, the court may order the child to be placed in a public hospital or institution for treatment or special care, or in a private treatment or care. In order to ascertain the physical condition of a child, the court may cause the child to be examined by a health officer or children's clinic or any reputable physician who will conduct the examination.
(2) The court may order or consent to necessary medical treatment, including surgical procedures, except for the purpose of abortion or sterilization, after a hearing conducted to determine the necessity of such treatment or procedure. Reasonable notice, taking into account any emergency circumstances, shall be provided to the parents, guardian or custodian of the child to enable them to attend the hearing.
From a review of the above quoted statutes, it is our opinion that the Department for Social Services, Cabinet for Human Resources, Commonwealth of Kentucky, may meet all of the requirements of 45 CFR § 1340.14 and 15.