§ 488 — Definitions

New York § 488

• Jurisdiction: New York
• Law SOS: Social Services
• Art. 11: Protection of People With Special Needs

Text

§ 488. Definitions. As used in this article, the following terms shall\nhave the following meanings:\n 1. "Reportable incident" shall mean the following conduct that a\nmandated reporter is required to report to the vulnerable persons'\ncentral register:\n (a) "Physical abuse," which shall mean conduct by a custodian\nintentionally or recklessly causing, by physical contact, physical\ninjury or serious or protracted impairment of the physical, mental or\nemotional condition of a service recipient or causing the likelihood of\nsuch injury or impairment. Such conduct may include but shall not be\nlimited to: slapping, hitting, kicking, biting, choking, smothering,\nshoving, dragging, throwing, punching, shaking, burning, cutting or the\nuse of corporal punishment. Physical abuse shall not include reasonable\nemergency interventions necessary to protect the safety of any person.\n (b) "Sexual abuse," which shall mean any conduct by a custodian that\nsubjects a person receiving services to any offense defined in article\none hundred thirty or section 255.25, 255.26 or 255.27 of the penal law;\nor any conduct or communication by such custodian that allows, permits,\nuses or encourages a service recipient to engage in any act described in\narticles two hundred thirty or two hundred sixty-three of the penal law.\nFor purposes of this paragraph only, a person with a developmental\ndisability who is or was receiving services and is also an employee or\nvolunteer of a service provider shall not be considered a custodian if\nhe or she has sexual contact with another service recipient who is a\nconsenting adult who has consented to such contact.\n (c) "Psychological abuse," which shall mean conduct by a custodian\nintentionally or recklessly causing, by verbal or non-verbal conduct, a\nsubstantial diminution of a service recipient's emotional, social or\nbehavioral development or condition, supported by a clinical assessment\nperformed by a physician, psychologist, psychiatric nurse practitioner,\nlicensed clinical or master social worker or licensed mental health\ncounselor, or causing the likelihood of such diminution. Such conduct\nmay include but shall not be limited to intimidation, threats, the\ndisplay of a weapon or other object that could reasonably be perceived\nby a service recipient as a means for infliction of pain or injury, in a\nmanner that constitutes a threat of physical pain or injury, taunts,\nderogatory comments or ridicule.\n (d) "Deliberate inappropriate use of restraints," which shall mean the\nuse of a restraint when the technique that is used, the amount of force\nthat is used or the situation in which the restraint is used is\ndeliberately inconsistent with a service recipient's individual\ntreatment plan or behavioral intervention plan, generally accepted\ntreatment practices and/or applicable federal or state laws, regulations\nor policies, except when the restraint is used as a reasonable emergency\nintervention to prevent imminent risk of harm to a person receiving\nservices or to any other person. For purposes of this subdivision, a\n"restraint" shall include the use of any manual, pharmacological or\nmechanical measure or device to immobilize or limit the ability of a\nperson receiving services to freely move his or her arms, legs or body.\n (e) "Use of aversive conditioning," which shall mean the application\nof a physical stimulus that is intended to induce pain or discomfort in\norder to modify or change the behavior of a person receiving services in\nthe absence of a person-specific authorization by the operating,\nlicensing or certifying state agency pursuant to governing state agency\nregulations. Aversive conditioning may include but is not limited to,\nthe use of physical stimuli such as noxious odors, noxious tastes,\nblindfolds, the withholding of meals and the provision of substitute\nfoods in an unpalatable form and movement limitations used as\npunishment, including but not limited to helmets and mechanical\nrestraint devices.\n (f) "Obstruction of reports of reportable incidents," which shall mean\nconduct by a custodian that impedes the discovery, reporting or\ninvestigation of the treatment of a service recipient by falsifying\nrecords related to the safety, treatment or supervision of a service\nrecipient, actively persuading a mandated reporter from making a report\nof a reportable incident to the statewide vulnerable persons' central\nregister with the intent to suppress the reporting of the investigation\nof such incident, intentionally making a false statement or\nintentionally withholding material information during an investigation\ninto such a report; intentional failure of a supervisor or manager to\nact upon such a report in accordance with governing state agency\nregulations, policies or procedures; or, for a mandated reporter who is\na custodian as defined in subdivision two of this section, failing to\nreport a reportable incident upon discovery.\n (g) "Unlawful use or administration of a controlled substance," which\nshall mean any administration by a custodian to a service recipient of:\na controlled substance as defined by article thirty-three of the public\nhealth law, without a prescription; or other medication not approved for\nany use by the federal food and drug administration, except for the\nadministration of medical cannabis when such administration is in\naccordance with article three of the cannabis law, and any regulations\npromulgated thereunder, as well as the policies or procedures of the\nfacility or provider agency governing such custodians. It also shall\ninclude a custodian unlawfully using or distributing a controlled\nsubstance as defined by article thirty-three of the public health law,\nat the workplace or while on duty.\n (h) "Neglect," which shall mean any action, inaction or lack of\nattention that breaches a custodian's duty and that results in or is\nlikely to result in physical injury or serious or protracted impairment\nof the physical, mental or emotional condition of a service recipient.\nNeglect shall include, but is not limited to: (i) failure to provide\nproper supervision, including a lack of proper supervision that results\nin conduct between persons receiving services that would constitute\nabuse as described in paragraphs (a) through (g) of this subdivision if\ncommitted by a custodian; (ii) failure to provide adequate food,\nclothing, shelter, medical, dental, optometric or surgical care,\nconsistent with the rules or regulations promulgated by the state agency\noperating, certifying or supervising the facility or provider agency,\nprovided that the facility or provider agency has reasonable access to\nthe provision of such services and that necessary consents to any such\nmedical, dental, optometric or surgical treatment have been sought and\nobtained from the appropriate individuals; or (iii) failure to provide\naccess to educational instruction, by a custodian with a duty to ensure\nthat an individual receives access to such instruction in accordance\nwith the provisions of part one of article sixty-five of the education\nlaw and/or the individual's individualized education program.\n (i) "Significant incident" shall mean an incident, other than an\nincident of abuse or neglect, that because of its severity or the\nsensitivity of the situation may result in, or has the reasonably\nforeseeable potential to result in, harm to the health, safety or\nwelfare of a person receiving services and shall include but shall not\nbe limited to:\n (1) conduct between persons receiving services that would constitute\nabuse as described in paragraphs (a) through (g) of this subdivision if\ncommitted by a custodian; or\n (2) conduct on the part of a custodian, which is inconsistent with a\nservice recipient's individual treatment plan or individualized\neducational program, generally accepted treatment practices and/or\napplicable federal or state laws, regulations or policies and which\nimpairs or creates a reasonably foreseeable potential to impair the\nhealth, safety or welfare of a person receiving services, including but\nnot limited to:\n (A) unauthorized seclusion, which shall mean the placement of a person\nreceiving services in a room or area from which he or she cannot, or\nperceives that he or she cannot, leave at will;\n (B) unauthorized use of time-out, which shall mean the use of a\nprocedure in which a person receiving services is removed from regular\nprogramming and isolated in a room or area for the convenience of a\ncustodian, or as a substitute for programming but shall not include the\nuse of a time-out as an emergency intervention to protect the health or\nsafety of the individual or other persons;\n (C) except as provided for in paragraph (g) of subdivision one of this\nsection, the administration of a prescribed or over-the-counter\nmedication, which is inconsistent with a prescription or order issued\nfor a service recipient by a licensed, qualified health care\npractitioner, and which has an adverse effect on a service recipient.\nFor purposes of this paragraph, "adverse effect" shall mean the\nunanticipated and undesirable side effect from the administration of a\nparticular medication which unfavorably affects the well-being of a\nservice recipient;\n (D) inappropriate use of restraints, which shall mean the use of a\nrestraint when the technique that is used, the amount of force that is\nused or the situation in which the restraint is used is inconsistent\nwith a service recipient's individual plan, generally accepted treatment\npractices and/or applicable federal or state laws, regulations or\npolicies. For the purposes of this subdivision, a "restraint" shall\ninclude the use of any manual, pharmacological or mechanical measure or\ndevice to immobilize or limit the ability of a person receiving services\nto freely move his or her arms, legs or body; or\n (3) any other conduct identified in regulations of the state oversight\nagency, pursuant to guidelines or standards established by the executive\ndirector.\n 2. "Custodian" means a director, operator, employee or volunteer of a\nfacility or provider agency; or a consultant or an employee or volunteer\nof a corporation, partnership, organization or governmental entity which\nprovides goods or services to a facility or provider agency pursuant to\ncontract or other arrangement that permits such person to have regular\nand substantial contact with individuals who are cared for by the\nfacility or provider agency.\n 3. "Executive director" shall mean the executive director of the\njustice center for the protection of people with special needs as\nestablished by article twenty of the executive law.\n 4. "Facility" or "provider agency" shall mean:\n (a) a facility or program in which services are provided and which is\noperated, licensed or certified by the office of mental health, the\noffice for people with developmental disabilities or the office of\naddiction services and supports, including but not limited to\npsychiatric centers, inpatient psychiatric units of a general hospital,\ndevelopmental centers, intermediate care facilities, community\nresidences, group homes and family care homes, provided, however, that\nsuch term shall not include a secure treatment facility as defined in\nsection 10.03 of the mental hygiene law, services defined in paragraphs\nfour and five of subdivision (a) of section 16.03 of the mental hygiene\nlaw, or services provided in programs or facilities that are operated by\nthe office of mental health and located in state correctional facilities\nunder the jurisdiction of the department of corrections and community\nsupervision;\n (b) any program or facility that is operated by the office of children\nand family services for juvenile delinquents or juvenile offenders\nplaced in the custody of the commissioner of such office and any\nresidential programs or facilities licensed or certified by the office\nof children and family services, excluding foster family homes and\nresidential programs for victims of domestic violence;\n (c) adult care facilities, which shall mean adult homes or enriched\nhousing programs licensed pursuant to article seven of this chapter: (i)\n(A) that have a licensed capacity of eighty or more beds; and (B) in\nwhich at least twenty-five percent of the residents are persons with\nserious mental illness as defined by subdivision fifty-two of section\n1.03 of the mental hygiene law; (ii) but not including an adult home or\nenriched housing program which is authorized to operate fifty-five\npercent or more of its total licensed capacity of beds as assisted\nliving program beds pursuant to section four hundred sixty-one-l of this\nchapter;\n (d) any overnight, summer day and traveling summer day camps for\nchildren with developmental disabilities as defined in regulations\npromulgated by the commissioner of health; or\n (e) the New York state school for the blind and the New York state\nschool for the deaf, which operate pursuant to articles eighty-seven and\neighty-eight of the education law; an institution for the instruction of\nthe deaf and the blind which has a residential component and is subject\nto the visitation of the commissioner of education pursuant to article\neighty-five of the education law with respect to its day and residential\ncomponents; special act school districts serving students with\ndisabilities; or in-state private schools which have been approved by\nthe commissioner of education for special education services or\nprograms, and which have a residential program.\n 4-a. "State oversight agency" shall mean the state agency that\noperates, licenses or certifies an applicable facility or provider\nagency; provided however that such term shall only include the following\nentities: the office of mental health, the office for people with\ndevelopmental disabilities, the office of alcoholism and substance abuse\nservices, the office of children and family services, the department of\nhealth and the state education department. "State oversight agency" does\nnot include agencies that are certification agencies pursuant to federal\nlaw or regulation.\n 5. "Mandated reporter" shall mean a custodian or a human services\nprofessional, but shall not include a service recipient.\n 5-a. "Human services professional" shall mean any: physician;\nregistered physician assistant; surgeon; medical examiner; coroner;\ndentist; dental hygienist; osteopath; optometrist; chiropractor;\npodiatrist; resident; intern; psychologist; registered nurse; licensed\npractical nurse; nurse practitioner; social worker; emergency medical\ntechnician; licensed creative arts therapist; licensed marriage and\nfamily therapist; licensed mental health counselor; licensed\npsychoanalyst; licensed behavior analyst; certified behavior analyst\nassistant; licensed speech/language pathologist or audiologist; licensed\nphysical therapist; licensed occupational therapist; hospital personnel\nengaged in the admission, examination, care or treatment of persons;\nChristian Science practitioner; school official, which includes but is\nnot limited to school teacher, school guidance counselor, school\npsychologist, school social worker, school nurse, school administrator\nor other school personnel required to hold a teaching or administrative\nlicense or certificate; full or part-time compensated school employee\nrequired to hold a temporary coaching license or professional coaching\ncertificate; social services worker; any other child care or foster care\nworker; mental health professional; person credentialed by the office of\nalcoholism and substance abuse services; peace officer; police officer;\ndistrict attorney or assistant district attorney; investigator employed\nin the office of a district attorney; or other law enforcement official.\n 6. "Physical injury" and "impairment of physical condition" shall mean\nany confirmed harm, hurt or damage resulting in a significant worsening\nor diminution of an individual's physical condition.\n 7. "Delegate investigatory entity" shall mean a facility or provider\nagency, or any other entity authorized by the regulations of a state\noversight agency or the justice center for the protection of people with\nspecial needs to conduct an investigation of a reportable incident.\n 8. "Justice center" shall mean the justice center for the protection\nof people with special needs.\n 9. "Person receiving services," or "service recipient" shall mean an\nindividual who resides or is an inpatient in a residential facility or\nwho receives services from a facility or provider agency.\n 10. "Personal representative" shall mean a person authorized under\nstate, tribal, military or other applicable law to act on behalf of a\nvulnerable person in making health care decisions or, for programs that\nserve children under the jurisdiction of the state education department\nor the office of children and family services, the service recipient's\nparent, guardian or other person legally responsible for such person.\n 11. "Abuse or neglect" shall mean the conduct described in paragraphs\n(a) through (h) of subdivision one of this section.\n 12. "Subject of the report" shall mean a custodian, as defined in\nsubdivision two of this section, who is reported to the vulnerable\npersons' central register for the alleged abuse or neglect of a\nvulnerable person as defined in subdivision eleven of this section.\n 13. "Other persons named in the report" shall mean and be limited to\nthe following persons who are named in a report to the vulnerable\npersons' central register other than the subject of the report: the\nservice recipient whose care and treatment is the concern of a report to\nthe vulnerable persons' central register, and the personal\nrepresentative, if any, as defined in subdivision ten of this section.\n 14. "Vulnerable persons' central register" shall mean the statewide\ncentral register of reportable incidents involving vulnerable persons,\nwhich shall operate in accordance with section four hundred ninety-two\nof this article.\n 15. "Vulnerable person" shall mean a person who, due to physical or\ncognitive disabilities, or the need for services or placement, is\nreceiving services from a facility or provider agency.\n 16. "Intentionally" and "recklessly" shall have the same meanings as\nprovided in subdivisions one and three of section 15.05 of the penal\nlaw.\n