NY Soc Serv L § 488 (2021)
2021 New York Laws SOS - Social Services Article 11 - Protection of People With Special Needs 488 - Definitions.

§ 488. Definitions. As used in this article, the following terms shall have the following meanings:   1.  "Reportable  incident"  shall  mean  the  following conduct that a mandated reporter is required  to  report  to  the  vulnerable  persons' central register:  (a)  "Physical  abuse,"  which  shall  mean  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.  (b)  "Sexual  abuse," which shall mean 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. For purposes of this paragraph  only,  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.  (c) "Psychological abuse," which shall mean  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.  (d) "Deliberate inappropriate use of restraints," which shall mean 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. For purposes of this subdivision, 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.  (e) "Use of aversive conditioning," which shall mean  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  operating, licensing  or certifying state agency pursuant to governing state agency regulations. 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.  (f) "Obstruction of reports of reportable incidents," which shall mean 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 statewide vulnerable persons' central register with the intent to suppress the reporting of 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  governing  state  agency regulations,  policies or procedures; or, for a mandated reporter who is a custodian as defined in subdivision two of this  section,  failing  to report a reportable incident upon discovery.  (g)  "Unlawful use or administration of a controlled substance," which shall mean 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,  except  for  the administration  of  medical  cannabis  when  such  administration  is in accordance with article three of the cannabis law, and  any  regulations promulgated  thereunder,  as  well  as the policies or procedures of the facility or provider agency governing such  custodians.  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.  (h)  "Neglect,"  which  shall  mean  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 (a) through (g) of this subdivision  if committed  by  a  custodian;  (ii)  failure  to  provide  adequate food, clothing,  shelter,  medical,  dental,  optometric  or  surgical   care, consistent with the rules or regulations promulgated by the state agency operating,  certifying  or  supervising the facility or provider agency, 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.  (i)  "Significant  incident"  shall  mean  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 shall not be limited to:  (1) conduct between persons receiving services that  would  constitute abuse  as described in paragraphs (a) through (g) of this subdivision if committed by a custodian; or  (2) conduct on the part of a 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 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;  (B) 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;  (C) except as provided for in paragraph (g) of subdivision one 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  paragraph,  "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;  (D) inappropriate use of restraints, which shall mean  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  subdivision,  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; or  (3) any other conduct identified in regulations of the state oversight agency, pursuant to guidelines or standards established by the executive director.   2. "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.   3. "Executive director" shall  mean  the  executive  director  of  the justice  center  for  the  protection  of  people  with special needs as established by article twenty of the executive law.   4. "Facility" or "provider agency" shall mean:  (a) a facility or program in which services are provided and which  is operated,  licensed  or  certified  by  the office of mental health, the office for people with  developmental  disabilities  or  the  office  of addiction   services   and   supports,  including  but  not  limited  to psychiatric centers, inpatient psychiatric units of a general  hospital, developmental   centers,   intermediate   care   facilities,   community residences, group homes and family care homes, provided,  however,  that such  term  shall  not include a secure treatment facility as defined in section 10.03 of the mental hygiene law, services defined in  paragraphs four  and five of subdivision (a) of section 16.03 of the mental hygiene  law, or services provided in programs or facilities that are operated by the office of mental health and located in state correctional facilities under the jurisdiction of the department of  corrections  and  community supervision;  (b) any program or facility that is operated by the office of children and  family  services  for  juvenile  delinquents  or juvenile offenders placed in the custody  of  the  commissioner  of  such  office  and  any residential  programs  or facilities licensed or certified by the office of children and family  services,  excluding  foster  family  homes  and residential programs for victims of domestic violence;  (c)  adult  care  facilities, which shall mean adult homes or enriched housing programs licensed pursuant to article seven of this chapter: (i) (A) that have a licensed capacity of eighty or more  beds;  and  (B)  in which  at  least  twenty-five  percent of the residents are persons with serious mental illness as defined by subdivision  fifty-two  of  section 1.03  of the mental hygiene law; (ii) but not including an adult home or enriched housing program  which  is  authorized  to  operate  fifty-five percent  or  more  of  its  total  licensed capacity of beds as assisted living program beds pursuant to section four hundred sixty-one-l of this chapter;  (d) any overnight, summer day  and  traveling  summer  day  camps  for children  with  developmental  disabilities  as  defined  in regulations promulgated by the commissioner of health; or  (e) the New York state school for the blind and  the  New  York  state school for the deaf, which operate pursuant to articles eighty-seven and eighty-eight of the education law; an institution for the instruction of the  deaf and the blind which has a residential component and is subject to the visitation of the commissioner of education pursuant  to  article eighty-five of the education law with respect to its day and residential components;   special   act   school  districts  serving  students  with disabilities; or in-state private schools which have  been  approved  by the   commissioner  of  education  for  special  education  services  or programs, and which have a residential program.   4-a. "State  oversight  agency"  shall  mean  the  state  agency  that operates,  licenses  or  certifies  an  applicable  facility or provider agency; provided however that such term shall only include the following entities: the office of  mental  health,  the  office  for  people  with developmental disabilities, the office of alcoholism and substance abuse services,  the office of children and family services, the department of health and the state education department. "State oversight agency" does not include agencies that are certification agencies pursuant to federal law or regulation.   5. "Mandated reporter" shall mean a  custodian  or  a  human  services professional, but shall not include a service recipient.   5-a.   "Human   services  professional"  shall  mean  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 of alcoholism  and substance abuse services; peace officer; police officer; district attorney or assistant district attorney; investigator  employed in the office of a district attorney; or other law enforcement official.   6. "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.   7. "Delegate investigatory entity" shall mean a facility  or  provider agency,  or  any  other  entity authorized by the regulations of a state oversight agency or the justice center for the protection of people with special needs to conduct an investigation of a reportable incident.   8. "Justice center" shall mean the justice center for  the  protection of people with special needs.   9.  "Person  receiving services," or "service recipient" shall mean an individual who resides or is an inpatient in a residential  facility  or who receives services from a facility or provider agency.   10.  "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 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.   11. "Abuse or neglect" shall mean the conduct described in  paragraphs (a) through (h) of subdivision one of this section.   12.  "Subject  of  the  report"  shall mean a custodian, as defined in subdivision two 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 eleven of this section.   13. "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, as defined in subdivision ten of this section.   14. "Vulnerable persons' central register" shall  mean  the  statewide central  register  of reportable incidents involving vulnerable persons, which shall operate in accordance with section four  hundred  ninety-two of this article.   15.  "Vulnerable  person"  shall mean 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.   16.  "Intentionally"  and "recklessly" shall have the same meanings as provided in subdivisions one and three of section  15.05  of  the  penal law.