Current through Register Vol. 46, No. 39, September 25, 2024
As used in this Part, unless otherwise indicated, the terms
listed below shall have the following meanings:
(a)
(1)
"Incident" means an event or happening, accident or injury during the conduct
of any program activity which involves a client, a custodian, or damage to the
facility in which the program operates and which has, or may have, an adverse
or endangering effect on the life, health or welfare of clients or custodians
and is required to be reported, investigated and recorded to designated parties
according to Article eleven of the social services law and procedures approved
by the Office, reviewed by an Incident Review Committee, and acted upon in an
appropriate manner to safeguard the well-being of clients and custodians and to
bring the matter to closure.
(2)
Incidents are either "reportable" to the Justice Center or
"nonreportable."
(3)
"Non-reportable" incidents need not be reported to the Justice Center, or if
they are reported may be determined as not within the jurisdiction of the
Justice Center; nevertheless, these incidents may require documentation in a
patient's clinical record or as an incident related to the program or facility
which must be maintained by the service provider for review by the provider's
Incident Review Committee, or by the Office or the Justice Center, upon
request.
(b) ''Reportable
incident'' means an incident of "abuse or neglect" or a "significant incident"
as defined in subdivision (c) or (d) of this section; some patient deaths are
also a reportable incident.
(c)
"Abuse or neglect" means a reportable incident described by the following
conduct that a mandated reporter is required to report to the Vulnerable
Persons' Central Register ("VPCR") via a toll-free hotline:
(1) "Physical abuse" means conduct by a
custodian intentionally or recklessly causing, by physical contact, physical
injury or serious or protracted impairment of the physical, mental or emotional
condition of a service recipient or causing the likelihood of such injury or
impairment. Such conduct may include but shall not be limited to: slapping,
hitting, kicking, biting, choking, smothering, shoving, dragging, throwing,
punching, shaking, burning, cutting or the use of corporal punishment. Physical
abuse shall not include reasonable emergency interventions necessary to protect
the safety of any person. In addition, a hotline call shall be made immediately
when an injury cannot be explained and investigation is needed because of the:
(i) Extent and/or location of the
injury;
(ii) Number of injuries at
one time; or
(iii) Frequency of
injuries over time.
(2)
"Sexual abuse" means any conduct by a custodian that subjects a person
receiving services to any offense defined in article one hundred thirty or
section 255.25, 255.26 or
255.27 of the penal law; or any conduct
or communication by such custodian that allows, permits, uses or encourages a
service recipient to engage in any act described in articles two hundred thirty
or two hundred sixty-three of the penal law.
(3) "Psychological abuse" means conduct by a
custodian intentionally or recklessly causing, by verbal or non-verbal conduct,
a substantial diminution of a service recipient'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. Such conduct shall be
reported to the Justice Center when a mandated reporter has reasonable cause to
suspect that it occurred, even though no clinical assessment has been
undertaken to determine its impact on the service recipient.
(4) "Deliberate inappropriate use of
restraints" means the use of a restraint when the technique, the amount of
force or the situation in which the restraint is used is deliberately
inconsistent with a service recipient's individual treatment/recovery plan,
generally accepted treatment practices and/or applicable federal or state laws,
regulations or policies, except when the restraint is used as a reasonable
emergency intervention to prevent imminent risk of harm to a person receiving
services or to any other person. For purposes of this Part a "restraint" shall
include the use of any manual, pharmacological or mechanical measure or device
to immobilize or limit the ability of a person receiving services to freely
move his or her arms, legs or body. A deliberate inappropriate restraint may
include, among other things, a finding that a restraint was used as a
punishment or for the convenience of staff.
(5) "Use of aversive conditioning" means the
application of a physical stimulus intended to induce pain or discomfort in
order to modify or change the behavior of a person receiving services in the
absence of a person-specific authorization by the Office pursuant to law,
regulations and clinical guidance. Aversive conditioning may include but is not
limited to, the use of physical stimuli such as noxious odors, noxious tastes,
blindfolds, the withholding of meals and the provision of substitute foods in
an unpalatable form and movement limitations used as punishment, including but
not limited to helmets and mechanical restraint devices.
(6) "Obstruction of reports of reportable
incidents" means conduct by a custodian that impedes the discovery, reporting
or investigation of the treatment of a service recipient by falsifying records
related to the safety, treatment or supervision of a service recipient,
actively persuading a mandated reporter from making a report of a reportable
incident to the Vulnerable Persons' Register with the intent to suppress the
reporting or the investigation of such incident, intentionally making a false
statement or intentionally withholding material information during an
investigation into such a report; intentional failure of a supervisor or
manager to act upon such a report in accordance with Office regulations,
policies or procedures; or, for a mandated reporter who is a custodian as
defined in subdivision (d) of this section, failing to report a reportable
incident upon discovery.
(7)
"Unlawful use or administration of a controlled substance" means any
administration by a custodian to a service recipient of: a controlled substance
as defined by article thirty-three of the public health law, without a
prescription; or other medication not approved for any use by the federal food
and drug administration. It also shall include a custodian unlawfully using or
distributing a controlled substance as defined by article thirty-three of the
public health law, at the workplace or while on duty.
(8) "Neglect" means 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 service recipient. Neglect shall
include, but is not limited to:
(i) failure
to provide proper supervision, including a lack of proper supervision that
results in conduct between persons receiving services that would constitute
abuse as described in paragraphs (1) through (7) of this subdivision if
committed by a custodian; or
(ii)
failure to provide adequate food, clothing, shelter, medical, dental,
optometric or surgical care, consistent with the rules or regulations
promulgated by the Office, provided that the facility or provider agency 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; or
(iii) 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 sixty-five of the education law and/or the
individual's individualized education program.
(d) "Significant incident" means a reportable
incident, other than an incident of abuse or neglect as defined in subdivision
(c) of this section, which because of its severity or the sensitivity of the
situation, may result in, or has the reasonably foreseeable potential to result
in, harm to the health, safety or welfare of a person receiving services and
shall include but is not limited to:
(1)
conduct between persons receiving services that would constitute abuse as
described in paragraphs (1) through (7) of subdivision (c) of this section, if
committed by a custodian; and
(2)
conduct on the part of a custodian, inconsistent with a service recipient's
individual treatment/recovery plan, generally accepted treatment practices
and/or applicable federal or state laws, regulations or policies and which
impairs or creates a reasonably foreseeable potential to impair the health,
safety or welfare of a person receiving services, including but not limited to:
(i) unauthorized seclusion, which shall mean
the placement of a person receiving services in a room or area from which he or
she cannot, or perceives that he or she cannot, leave at will;
(ii) unauthorized use of time-out, which
shall mean the use of a procedure in which a person receiving services is
removed from regular programming and isolated in a room or area for the
convenience of a custodian, or as a substitute for programming but shall not
include the use of a time-out as an emergency intervention to protect the
health or safety of the individual or other persons;
(iii) except as provided for in paragraph (7)
of subdivision (c) of this section, the administration of a prescribed or
over-the-counter medication, which is inconsistent with a prescription or order
issued for a service recipient by a licensed, qualified health care
practitioner, and which has an adverse effect on a service recipient. For
purposes of this subparagraph, "adverse effect" shall mean the unanticipated
and undesirable side effect from the administration of a particular medication
which unfavorably affects the well-being of a service recipient;
(iv) inappropriate use of restraints, which
shall mean the use of a restraint when the technique, the amount of force or
the situation in which the restraint is used are inconsistent with a service
recipient's individual treatment/recovery plan, generally accepted treatment
practices and/or applicable federal or state laws, regulations or policies;
or
(3) Other significant
incidents, including but not limited to:
(i)
An event that is, or appears to be, a crime under New York state or federal law
involving custodians, clients, or others, including children of service
recipients in a residential program, as victims or perpetrators;
(ii) Body cavity search; which is explicitly
prohibited pursuant to Part 815 of this Title;
(iii) Any violation of a client's rights to
confidentiality pursuant to 42 CFR Part 2 or the Health Insurance Portability
and Accountability Act (HIPAA).
(iv) Missing client as defined in subdivision
(u) of this section;
(v) Suicide
attempt whether or not preceded by statements of intent; statement of intent
alone is not a suicide attempt; statements of intent should be recorded in a
patient's clinical record;
(vi)
Death of a custodian or mandated reporter during the course of his/her job
duties related to the provider facility; shall also be reported to any other
appropriate entity;
(vii) Death of
an outpatient client if death occurs on program premises or during the course
of program activities.
(e) "Custodian" means a director, operator,
employee or volunteer of a facility or provider agency; or a consultant or an
employee or volunteer of a corporation, partnership, organization or
governmental entity which provides goods or services to a facility or provider
agency pursuant to contract or other arrangement that permits such person to
have regular and substantial contact with individuals who are cared for by the
facility or provider agency.
(f)
"Facility" or "provider agency" shall mean a facility or program in which
services are provided and which is operated, licensed or certified by the
Office. Such facilities and provider agencies are within the jurisdiction of
the Justice Center for purposes of reporting reportable incidents to the
Justice Center's Vulnerable Persons' Central Register.
(g) "Mandated reporter" means a custodian or
a human services professional, but shall not include a service
recipient.
(h) "Human services
professional" means any: physician; registered physician assistant; surgeon;
medical examiner; coroner; dentist; dental hygienist; osteopath; optometrist;
chiropractor; podiatrist; resident; intern; psychologist; registered nurse;
licensed practical nurse; nurse practitioner; social worker; emergency medical
technician; licensed creative arts therapist; licensed marriage and family
therapist; licensed mental health counselor; licensed psychoanalyst; licensed
behavior analyst; certified behavior analyst assistant; licensed
speech/language pathologist or audiologist; licensed physical therapist;
licensed occupational therapist; hospital personnel engaged in the admission,
examination, care or treatment of persons; Christian Science practitioner;
school official, which includes but is not limited to school teacher, school
guidance counselor, school psychologist, school social worker, school nurse,
school administrator or other school personnel required to hold a teaching or
administrative license or certificate; full or part-time compensated school
employee required to hold a temporary coaching license or professional coaching
certificate; social services worker; any other child care or foster care
worker; mental health professional; person credentialed by the Office; peace
officer; police officer; district attorney or assistant district attorney;
investigator employed in the office of a district attorney; or other law
enforcement official.
(i) "Physical
injury" and "impairment of physical condition" means any confirmed harm, hurt
or damage resulting in a significant worsening or diminution of an individual's
physical condition.
(j) "Delegate
investigatory entity" means a facility or provider agency, or any other entity
authorized by regulations of the Office or the Justice Center to conduct an
investigation of a reportable incident.
(k) "Justice Center" means the Justice Center
for the Protection of People with Special Needs established pursuant to Chapter
501 of the Laws of 2012.
(l)
"Person receiving services," or "service recipient" means a client who receives
or has received services from a facility or provider agency.
(m) "Personal representative" means a person
authorized under state, tribal, military or other applicable law to act on
behalf of a vulnerable person in making health care decisions, or a service
recipient's parent, guardian or other person legally responsible for the
service recipient.
(n) "Subject of
the report" means a custodian, as defined in subdivision (e) of this section,
who is reported to the vulnerable persons' central register for the alleged
abuse or neglect of a vulnerable person as defined in subdivision (q) of this
section.
(o) "Other persons named
in the report" means and is limited to the following persons who are named in a
report to the Vulnerable Persons' Register other than the subject of the
report: the service recipient whose care and treatment is the concern of a
report to the Vulnerable Persons' Central Register, and the personal
representative, if any, as defined in subdivision (m) of this
section.
(p) "Vulnerable Persons'
Central Register" means the statewide central register of reportable incidents
involving vulnerable persons, which shall operate in accordance with section
four hundred ninety-two of Article 11 of the social services law.
(q) "Vulnerable person" means a person who,
due to physical or cognitive disabilities, or the need for services or
placement, is receiving services from a facility or provider agency.
(r) "Intentionally" and "recklessly" shall
have the same meanings as provided in subdivisions one and three of section 15.05 of the penal law.
(s) "Clinical records" means information
concerning or related to the examination or treatment of a person receiving
services from a provider agency.
(t) "Incident management program" means a
plan developed and maintained by service providers pursuant to section
836.5
of this Part including specifications for the identification, investigation,
reporting and appropriate response to any incident and review by the provider's
Incident Review Committee.
(u)
"Missing client" means a client
(1) over the
age of eighteen in a residential facility who has not been accounted for when
and where such client is expected to be present and, after 24 hours, whose
location has not been determined by means of immediate and appropriate diligent
efforts (a client is accounted for and not missing if staff has received
information regarding the patient's intention to leave treatment against
medical advice or to remove himself/herself to a specific location outside of
the facility with or without an approved pass); or
(2) under the age of eighteen in a
residential facility who has not been accounted for when and where such client
is expected to be present and, after 24 hours, whose location has not been
determined by means of immediate and appropriate diligent efforts (a client is
accounted for and not missing if staff has received information regarding the
patient's intention to leave treatment against medical advice or to remove
himself/herself to a specific location outside of the facility with or without
an approved pass, or is known to be in the custody of a parent or
guardian).
(v) "Qualified
person" means an individual receiving services or his or her personal
representative as defined in subdivision (l) of this section.
(w) "Staff" means custodians identified as an
administrator, licensed clinician, contractor, employee, consultant, volunteer,
intern, peer advocate, agent, or counselor trainee affiliated with a program
certified, licensed, funded, or operated by the Office.
(x) "Incident Review Committee" means a
committee required by a facility Incident management program and established
pursuant to section
836.5
of this Title.
