Current through Register Vol. 46, No. 39, September 25, 2024
For purposes of reporting incidents pursuant to Section
524.7
of this Part, the following terms are defined; provided, however, nothing
contained herein shall be construed as restricting the discretion of the
Justice Center in categorizing incident reports:
(a)
Abuse: any
of the following acts of a custodian:
(1)
Physical Abuse: intentionally or recklessly causing, by
physical contact, physical injury or serious or protracted impairment of the
physical, mental, or emotional condition of a patient or causing the likelihood
of such injury or impairment; such conduct may include, but is not limited to
slapping, hitting, kicking, biting, choking, smothering, shoving, dragging,
throwing, punching, shaking, burning, cutting, or the use of corporal
punishment, provided, however, that this shall not include reasonable emergency
interventions necessary to protect the safety of any person.
(2)
Psychological Abuse:
intentionally or recklessly causing, by verbal or non-verbal conduct, a
substantial diminution of a patient's emotional, social or behavioral
development or condition, supported by a clinical assessment performed by a
physician, psychologist, psychiatric nurse practitioner, licensed clinical or
master social worker or licensed mental health counselor, or causing the
likelihood of such diminution. Such conduct may include, but shall not be
limited to, intimidation, threats, the display of a weapon or other object that
could reasonably be perceived by a service recipient as a means for infliction
of pain or injury, in a manner that constitutes a threat of physical pain or
injury, taunts, derogatory comments, or ridicule.
(3)
Sexual Abuse: conduct
that subjects a patient to any offense defined in Article 130 (sex offenses) or
Section 255.25 (incest, 3rd degree), 255.26 (incest,
2nd degree), or 255.27 (incest,
1st degree) of the Penal Law, or any conduct or
communication that allows, permits, uses or encourages a patient to engage in
any act described in Articles 230 (prostitution offenses) or 263 (sexual
performance by a child) of the Penal Law.
(4)
Deliberate Inappropriate Use of
Restraint:
(i) The application of
restraint, as defined in Section
526.4 of
this Title, shall constitute abuse when such application is deliberately
inappropriate. For purposes of this Part, "deliberately inappropriate" shall
mean any use of restraint for any reason other than as an emergency safety
intervention.
(ii) The application
of restraint shall not constitute abuse when such application
is necessary and performed in accordance with applicable laws and
regulations.
(iii) In situations in
which alternative procedures and methods not involving the use of physical
force cannot reasonably be employed, nothing in this Section shall be construed
to prohibit the use of reasonable physical force when necessary to protect the
life and limb of any person.
(5)
Obstruction of reports of
Reportable Incidents: conduct that impedes the discovery, reporting or
investigation of treatment of a patient by falsifying records related to the
safety, treatment or supervision of a patient, actively persuading a Mandated
Reporter from making a report of a reportable incident to the Statewide
Vulnerable Persons' Central Register with the intent to suppress the reporting
or the investigation of an incident, intentionally making a false statement or
intentionally withholding material information during an investigation into
such a report in accordance with governing state agency regulations, policies,
or procedures; intentional failure of a supervisor or manager to act upon such
a report, or failure by a Mandated Reporter to report a reportable incident
upon discovery, (unless the report is made in accordance with the provisions of
subdivision (e) of Section
524.8
of this Part).
(6)
Unlawful
use or administration of a controlled substance: any administration to
a patient of a controlled substance, as defined by Article 33 of the Public
Health Law without a lawful prescription, or other medication not approved for
any use by the federal Food and Drug Administration, and/or unlawful use or
distribution of a controlled substance as defined by Article 33 of the Public
Health Law at the workplace or while on duty.
(7)
Aversive conditioning:
the use of unpleasant physical stimulus to modify behavior without
person-specific legal authorization, provided, however, that any use of
aversive conditioning is prohibited in facilities under the jurisdiction of the
Office.
(b)
Assault: a violent or forceful physical attack by
a person other than a custodian, in which a patient is either the victim, or
aggressor, and which results in serious injury or harm.
(c)
Crime: an
event which is or appears to be a crime under New York State or Federal law,
which occurs on program premises or when a patient is under the actual or
intended supervision of a custodian, and which involves a patient as a victim,
or which affects or has the potential to affect the health or safety of one or
more patients of the program or has the potential to have a significant adverse
impact on the property or operation of the program.
For the purposes of this Part, crimes shall include acts
committed by persons less than 16 years of age which, if committed by an adult,
would constitute a crime.
(d)
Crimes in the
Community: an event which is, or appears to be, a crime under
New York State or Federal law, and which is perceived to be a significant
danger to the community or which involves a patient whose behavior poses an
imminent concern to the community.
(e)
Falls by patients:
events where patients trip, slip, or otherwise fall while in an
inpatient or residential setting, resulting in serious injury or
harm.
(f)
Fight: a physical altercation between two or more
patients, in which there is no clear aggressor and no clear victim, resulting
in serious injury or harm.
(g)
Financial exploitation: use, appropriation, or
misappropriation by a custodian of a patient's resources, including but not
limited to funds, assets, or property, by deception, intimidation, or similar
means, with the intent to deprive the patient of those resources. Examples
include the deliberate misplacement, theft, or wrongful, temporary, or
permanent use of a patient's belongings or money.
(h)
Fire setting:
action by a patient of a mental health provider, either
deliberate or accidental, that results in fire on program premises.
(i)
Injury of unknown origin:
an injury to a patient for which a cause cannot be immediately
determined because:
(1) the source of the
injury was not observed by any person or the source of the injury could not be
explained by the patient or other person; and
(2) the injury is suspicious because of the
extent of the injury, the location of the injury (e.g., the injury is located
in an area not generally vulnerable to trauma), the number of injuries observed
at one particular point in time, or the frequency of the incidence of injuries
over time.
(j)
Medication error: an error in prescribing,
dispensing, or administering a drug which results in serious injury or
harm.
(k)
Missing
patient:
(1) a patient of an
inpatient or residential program who has not been accounted for when expected
to be present (in accordance with facility or program practice or policies) and
who has not been found on the facility grounds or other expected location, or
who is known to have left the facility grounds without the permission of an
employee, when such permission is otherwise required and who is considered
dangerous to others or unable to care for him/herself; or
(2) a patient of an outpatient mental health
program who is under the age of 18, and whose whereabouts are not accounted for
when expected to be present or under the supervision of an employee.
(l)
Missing subject
of AOT Order: A person subject to an Assisted Outpatient
Treatment (AOT) order who fails to keep a scheduled appointment and/or who
cannot be located within a 24 hour period.
(m)
Mistreatment:
(1) use of restraint, as defined in Section
526.4 of
this Title, that is inappropriate because it was implemented without a valid
physician's order or in a manner that was otherwise not compliant with
applicable state or federal regulations, but which does not rise to the level
of physical abuse, as defined in this section;
(2) use of seclusion, as defined in Section
526.4 of
this Title, that was unauthorized because it was implemented without a valid
physician's order or in a manner that was otherwise not compliant with
applicable state or federal regulations;
(3) removal of a patient from regular
programming to isolate him/her in an area for the convenience of a custodian or
as a substitute for programming; or
(4) any intentional administration to a
patient of a prescription drug or over-the-counter medication which is not in
substantial compliance with a physician's, dentist's, physician's assistant's,
specialist's assistant's, or nurse practitioner's prescription;
(n)
Neglect:
any action, inaction or lack of attention that breaches a
custodian's duty and that results in or is likely to result in physical injury
or serious or protracted impairment of the physical, mental or emotional
condition of a patient. Neglect shall include, but is not limited to:
(1) failure to provide proper supervision,
including a lack of proper supervision that results in conduct between persons
receiving services that would constitute abuse if committed by a
custodian;
(2) failure to provide
adequate food, clothing, shelter, medical, dental, optometric or surgical care,
consistent with the rules or regulations of the Office, provided that the
mental health provider has reasonable access to the provision of such services
and that necessary consents to any such medical, dental, optometric or surgical
treatment have been sought and obtained from the appropriate individuals;
and
(3) failure to provide access
to educational instruction, by a custodian with a duty to ensure that an
individual receives access to such instruction in accordance with the
provisions of Part One of Article 65 of the Education Law and/or the patient's
individualized education program.
(o)
Other Incident: An event,
other than one identified in this section, which has or creates a risk of, a
serious adverse effect on the life, health, or safety of a patient.
(p)
Self-abuse:
self-inflicted injury not intended to result in death that
results in serious injury or harm.
(q)
Severe adverse drug
reaction: an unintended, unexpected, or excessive response of a
patient to a medication that occurs at doses normally used in patients for
prophylaxis, diagnosis or therapy of disease, or for the modification of
physiologic function and which:
(1) results
in transfer to an emergency room, admission to a medical facility, or a longer
hospital stay;
(2) requires
intervention to prevent permanent impairment;
(3) results in permanent
disability;
(4) results in
congenital anomaly (birth defect);
(5) is life threatening; or
(6) results in death.
(r)
Sexual assault:
a sexual attack including but not limited to those that result
in vaginal, anal, or oral penetration, i.e., rape or attempted rape and sodomy
or attempted sodomy; and/or any sexual contact between a person who is 18 years
old or more and a person who is less than 15 years old, or between a person who
is 21 years of age or older and a person who is less than 17 years old, or
which involves a patient who is deemed incapable of consent.
(s)
Sexual contact between
children: vaginal, anal, or oral penetration by patients under
age 18 that occurs in a setting where the patient receives around-the-clock
care or on the premises of an outpatient program.
(t)
Suicide attempt:
an act committed by a patient of a mental health provider in an
effort to cause his or her own death that occurs on program premises or when
the patient was under the actual or intended supervision of a
custodian.
(u)
Suicide attempt, Off Site: an act committed by a
patient of a mental health provider in an effort to cause his or her own death
that occurs off program premises, when the patient was not under the actual or
intended supervision of a custodian.
(v)
Verbal Aggression by
Patients: a sustained, repetitive action or pattern by a
patient or patients of ridiculing, bullying, demeaning, making derogatory
remarks, verbally harassing, or threatening to inflict physical or emotional
harm on another patient or patients, which causes serious injury or
harm.
(w)
Wrongful
Conduct: Actions or inactions on the part of a custodian that
are contrary to sound judgment or training and which are related to the
provision of services, the safeguarding of patient health, safety, or welfare,
or patient rights, but which do not meet the definition of abuse or neglect,
including but not limited to:
(1) any
non-accidental physical contact with a patient which causes minor injury or has
the reasonably foreseeable potential to cause injury, provided however that
this shall not include the application of restraint, when such application is
necessary and performed in accordance with applicable laws and regulations, or
reasonable emergency interventions necessary to protect the safety of any
person;
(2) intentional verbal or
nonverbal conduct that is meant to cause a patient emotional distress, but
which does not result in harm, or results in only minor harm, to the patient.
Examples include taunting, name calling, issuing threats, using insulting,
disrespectful, or coarse language or gestures directed toward a patient;
violating patient rights or misusing authority;
(3) activity of a sexual nature (physical or
non-physical) involving a patient and a custodian; or activity of a sexual
nature involving a patient that is encouraged by a custodian. Examples include
inappropriate touching or physical contact, sending sexually explicit materials
through electronic means (including mobile phones, electronic mail, etc.),
voyeurism, or sexual exploitation; or
(4) conduct that falls below the standards of
behavior established in regulations or facility policies and procedures for the
protection of patients against unreasonable risk of harm (e.g., sleeping while
on duty).
