Current through Register Vol. 46, No. 39, September 25, 2024
(a) Abused child in residential care means a
child in residential care who:
(1) is
subjected to any of the following acts, regardless of whether such act results
in injury, when such act is committed by a custodian of the child, is not
accidental and does not constitute emergency physical intervention necessary to
protect the safety of any person:
(i) being
thrown, shoved, kicked, burned, stricken, choked, smothered, pinched, punched,
shaken, cut or bitten;
(ii) the
display of a weapon, or other object that could reasonably be perceived by the
child as a means for the infliction of pain or injury, in a manner that
constitutes a threat of physical pain or injury;
(iii) the use of corporal
punishment;
(iv) the withholding of
nutrition or hydration as punishment; or
(v) the unlawful administration of any
controlled substance as defined by article 33 of the Public Health Law, or any
alcoholic beverage, as defined by section 3 of the Alcoholic Beverage Control Law, to
the child; or
(2) is
inflicted, by other than accidental means, with a reasonably foreseeable injury
that causes death or creates a substantial risk of death, serious or protracted
disfigurement, serious or protracted impairment of his or her physical, mental
or emotional condition, or serious or protracted loss or impairment of the
function of any organ; or
(3) is
subjected to a reasonably foreseeable and substantial risk of injury, by other
than accidental means, which would be likely to cause death, serious or
protracted disfigurement, serious or protracted impairment of his or her
physical, mental or emotional condition, or serious or protracted loss or
impairment of the function of any organ; or
(4) is the victim of any sexual offense, as
described in the Penal Law.
(b) Behavioral health organization or BHO
shall mean an entity selected by the Commissioner of the Office of Mental
Health and the Commissioner of the Office of Alcoholism and Substance Abuse
Services pursuant to section 365-m of the New York State Social Services Law to
provide administrative and management services for the purposes of conducting
concurrent review of behavioral health admissions to inpatient treatment
settings, assisting in the coordination of behavioral health services, and
facilitating the integration of such services with physical health
care.
(c) Child, for purposes of
this Part, means an individual under 18 years of age.
(d) Commissioner means the Commissioner of
Mental Health.
(e) Concurrent
review shall mean the review of the clinical necessity for continued inpatient
behavioral health services, resulting in a non-binding recommendation regarding
the need for such continued inpatient services.
(f) Custodian means the director, operator,
employee or volunteer of a hospital or a consultant or an employee or volunteer
of a corporation, partnership, organization or governmental entity which
provides goods or services to the hospital pursuant to a contract or other
arrangement that permits such person to have regular and substantial contact
with children in residential care, as such term is defined in section 412-a of the Social Services
Law.
(g) Hospital means any
residential facility or institution providing a program of 24-hour professional
care and treatment of persons with mental illness.
(h) Maltreated child means a child under the
age of 18 years who is in residential care and identified as a neglected
child.
(i) Mental or emotional
injury or impairment and impairment of mental or emotional condition, means a
substantial diminution of a child's psychological or intellectual functioning
which is determined by a physician, psychologist, psychiatric nurse
practitioner, licensed clinical or master social worker, or licensed mental
health counselor.
(j) Neglected
child in residential care means a child who:
(1) experiences an impairment of his or her
physical, mental or emotional condition or is subjected to a substantial risk
of such impairment because he or she has not received:
(i) adequate food, clothing, shelter,
medical, dental, optometric or surgical care, consistent with the rules or
regulations of the office, provided that the facility 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;
(ii)
access to educational instruction in accordance with the provisions of article
65 of the Education Law; or
(iii)
proper supervision or guardianship, consistent with the rules or regulations of
the office; or
(2) is
inflicted with a physical, mental or emotional injury, excluding a minor
injury, by other than accidental means, or is subjected to the risk of a
physical, mental or emotional injury, excluding minor injury, by other than
accidental means, where such injury or risk of injury was reasonably
foreseeable; or
(3) is inflicted
with a physical, mental or emotional injury, excluding minor injury, by other
than accidental means, or is subjected to the substantial risk of a physical,
mental or emotional injury, excluding minor injury, by other than accidental
means, as a result of a failure to implement an agreed upon plan of prevention
and remediation; or
(4) is
subjected to the intentional administration of any prescription or
non-prescription drug other than in substantial compliance with a prescription
or order issued for the child by a licensed, qualified health care
practitioner.
(k) Office
means the New York State Office of Mental Health.
(l) Physical injury or impairment and
impairment of physical condition, means any confirmed harm, hurt, or damage
resulting in a significant worsening or diminution of the child's
condition.
(m) Residential care
means care provided to a child in a hospital, as such term is defined in this
section.
