Current through Register Vol. 46, No. 39, September 25, 2024
(a)
Facility or
provider agency means a program or residential facilities
operated by the Office of Children and Family Services pursuant to article 19-G
of the Executive Law, detention programs, runaway and homeless youth programs,
residential facilities for children granted operating certificates pursuant to
section 460-b of the Social Services Law, and
family type homes for adults.
(b)
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.
(c)
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.
(d)
Human services
professional means a 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 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; social services worker; any
other child care or foster care worker; mental health professional; person
credentialed by the office of alcoholism and substance abuse services; peace
officer; police officer; district attorney or assistant district attorney;
investigator employed in the office of the district attorney; or other law
enforcement official.
(e)
Mandated reporter means a custodian or human services
professional, but shall not include a service recipient.
(f)
The Justice Center means
the Justice Center for the Protection of People with Special Needs established
pursuant to article 20 of the Executive Law.
(g)
Vulnerable Persons' Central
Register means the central register established and operated by the
Justice Center pursuant to section 492 of the Social Services Law and which
duties include, but are not limited to, receiving reports of allegations of
reportable incidents involving persons receiving services provided by a
facility or provider agency.
(h)
Reportable incident means the following conduct that a
mandated reporter is required to report to the Vulnerable Persons' Central
Register.
(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 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.
(2)
Sexual abuse means any
conduct by a custodian that subjects a person receiving services to any offense
defined in article 130 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 article 230 or 263 of the
Penal Law. For the purposes of this definition of sexual abuse a person with a
developmental disability who is or was receiving services and is also an
employee or volunteer of a service provider shall not be considered a custodian
if he or she has sexual contact with another service recipient who is a
consenting adult who has consented to such contact.
(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. Clinical assessment is necessary for substantiation after
investigation, but not for reporting a reasonable suspicion.
(4)
Deliberate inappropriate use of
restraints means the use of a restraint when the technique that is
used, the amount of force that is used or the situation in which the restraint
is used is deliberately inconsistent with a service recipient's individual
treatment plan or behavioral intervention 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. Restraint includes 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.
(5)
Use of aversive
conditioning means the application of a physical stimulus that is
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 of Children and Family Services. 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 to make a false statement or intentionally withholding material
information during an investigation into such a report; or intentional failure
of a supervisor or manager to act upon such a report in accordance with
governing regulations, policies or procedures; or, for a mandated reporter who
is a custodian 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 33 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 33 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: failure to provide
proper supervision, including lack of proper supervision that results in
conduct between persons receiving services that would constitute physical
abuse, sexual abuse, psychological abuse, deliberate or inappropriate use of
restraints, use of aversive conditioning, obstruction or reports of reportable
incidents, or unlawful use or administration of a controlled substance, as
defined above; failure to provide adequate food, clothing, shelter, medical,
dental, optometric or surgical care, consistent with the rules and regulations
governing the same, 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 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 this part and of article 65 of the Education Law and/or the
individual's individualized educational program.
(9)
Significant incident
means an incident, other than an incident of abuse or neglect, that 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 not be limited to:
(i) conduct between persons receiving
services that would constitute abuse as defined in paragraphs (h)(1)-(7) of
this section if committed by a custodian; or
(ii) conduct on the part of the custodian,
which is inconsistent with a service recipient's individual treatment plan or
individualized educational program, 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:
(a) unauthorized seclusion, which 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;
(b) unauthorized use of time out, which means
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;
(c)
except as defined and provided for in paragraph (7) of this subdivision, 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 the purpose of this subdivision adverse
effect shall mean the unanticipated and undesirable side effect from
the administration of a particular medication which unfavorably affects the
well-being of the service recipient;
(d) inappropriate use of restraints, which
means the use of a restraint when the technique that is used, the amount of
force that is used or the situation in which the restraint is used is
inconsistent with a service recipient's individual plan, generally accepted
treatment practices and/or applicable Federal or State laws, regulations or
policies. For the purposes of this clause, 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; or
(e) any other conduct identified in
regulations, guidelines or standards established by the Justice Center and/or
the Office of Children and Family Services.
(i)
Physical injury and
impairment of physical condition shall mean any confirmed harm, hurt
or damage resulting in a significant worsening or diminution of an individual's
physical condition.
(j)
Delegate investigatory entity shall mean a facility or
provider agency, or any other entity authorized by the regulations of the
Office of Children and Family Services or the Justice Center.
(k)
Person receiving
services or service recipient shall mean an
individual who is an inpatient in a residential facility or who receives
services from a facility or provider agency.
(l)
Personal representative
shall mean 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, for the programs that serve children under the jurisdiction of
the state education department or the Office of Children and Family Services,
the service recipient's parent, guardian or other person legally responsible
for such person.
(m)
Abuse or neglect shall mean conduct described
in paragraphs (1) through (8) of this section.
(n)
Subject of the report
shall mean a custodian who is reported to the Vulnerable Persons' Central
Register for the alleged abuse or neglect of a vulnerable person.
(o)
Other persons named in the
report shall mean and be limited to the following persons who are
named in a report to the Vulnerable Persons' Central 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.
(p)
Intentionally and
recklessly shall have the same meanings as provided in subdivisions
one and three of section 15.05 of the Penal Law.
