New York Codes, Rules and Regulations › Title 14 - DEPARTMENT OF MENTAL HYGIENE › Chapter XIV - Office for People With Developmental Disabilities › Part 624 - Reportable Incidents And Notable Occurrences › Section 624.3 - Reportable incidents, defined

Current through Register Vol. 46, No. 28, July 10, 2024
(a) Reportable
				incidents are events or situations that meet the definitions in subdivision (b)
				of this section and occur under the auspices (see glossary, section
				624.20) of an
				agency.
(b) Definitions of
				reportable incidents.
(1)
Physical
				abuse.
Conduct by a custodian (see glossary, section
				624.20)
				intentionally (see glossary, section
				624.20) or
				recklessly (see glossary, section
				624.20)
				causing, by physical contact, physical injury (see glossary, section
				624.20) or
				serious or protracted impairment of the physical, mental, or emotional
				condition of the individual receiving services, or causing the likelihood of
				such injury or impairment. Such conduct may include, but is not limited to:
				slapping, hitting, kicking, biting, choking, smothering, shoving, dragging,
				throwing, punching, shaking, burning, cutting, or the use of corporal
				punishment. Physical abuse does not include reasonable emergency interventions
				necessary to protect the safety of any party.
(2)
Sexual abuse.
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
				person receiving services to engage in any act described in articles 230 or 263
				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 an agency is not considered a custodian if he or she
				has sexual contact with another individual receiving services who is a
				consenting adult who has consented to such contact.
(3)
Psychological abuse
. Any
				verbal or nonverbal conduct that may cause significant emotional distress to an
				individual receiving services.
(i) Examples
				include, but are not limited to taunts, derogatory comments or ridicule,
				intimidation, threats, or the display of a weapon or other object that could
				reasonably be perceived by an individual receiving services as a means for
				infliction of pain or injury, in a manner that constitutes a threat of physical
				pain or injury.
(ii) In order for
				a case of psychological abuse to be substantiated after it has been reported,
				the conduct must be shown to intentionally or recklessly cause, or be likely to
				cause, a substantial diminution of the emotional, social, or behavioral
				development or condition of the individual receiving services. Evidence of such
				an effect must be supported by a clinical assessment performed by a physician,
				psychologist, psychiatric nurse practitioner, licensed clinical or master
				social worker, or licensed mental health counselor.
(4)
Deliberate inappropriate use of
				restraint.
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 an individual's plan of services (e.g.,
				individualized service plan (ISP) or a habilitation plan), or behavior support
				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 party. For purposes of this paragraph, a
				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.
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. Aversive conditioning may include, but is not
				limited to, the use of physical stimuli such as noxious odors, noxious tastes,
				blindfolds, and the withholding of meals and the provision of substitute foods
				in an unpalatable form. The use of aversive conditioning is prohibited by
				OPWDD.
(6)
Obstruction of
				reports of reportable incidents.
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 an individual receiving services; actively persuading a
				custodian or other mandated reporter (as defined in section 488  of the Social Services Law) from making
				a report of a reportable incident to the statewide vulnerable persons' central
				register (VPCR) or OPWDD 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 OPWDD regulations, policies, or procedures; or, for
				a custodian, failing to report a reportable incident upon discovery.
(7)
Unlawful use or administration of
				a controlled substance.
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, 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 33 of the Public Health Law, at
				the workplace or while on duty.
(8)
Neglect.
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 includes, 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;
(ii) Failure to provide
				adequate food, clothing, shelter, or medical, dental, optometric, or surgical
				care, consistent with Parts 633, 635, and 686, of this Title (and 42 CFR Part
				483, applicable to Intermediate Care Facilities), and provided that the 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 parties; 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 65 of the education law and/or the
				individual's individualized education program.
(9)
Significant incident.
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 includes but is not limited to:
(i) the following types of incidents prior to
				January 1, 2016:
(a)
Conduct between
				persons receiving services that would constitute abuse
as described in
				paragraphs (1) through (7) of this subdivision if committed by a custodian,
				except sexual activity involving adults who are capable of consenting and
				consent to the activity; or
(b)
Conduct on the part of a custodian, that is inconsistent with the
				individual's plan of services
, generally accepted treatment practices,
				and/or applicable federal or state laws, regulations or policies, and that
				impairs or creates a reasonably foreseeable potential to impair the health,
				safety, or welfare of an individual receiving services, including:
(1)
Seclusion.
The placement
				of an individual receiving services in a room or area from which he or she
				cannot, or perceives that he or she cannot, leave at will except when such
				placement is specifically permitted by section
				633.16 
				of this Title. Unless permitted by Section
				633.16,
				the use of seclusion is prohibited;
Note: Section
				  633.16 
				  of this Title (
Person-Centered Behavioral Intervention
)
				  identifies a form of "exclusionary time out," which prevents egress from a time
				  out room by a custodian's direct and continuous action, and requires constant
				  visual and auditory monitoring. Use of exclusionary time out may be included in
				  a formal behavior support plan and implemented in accordance with the
				  conditions and limits set forth in paragraph 633.16(j)(3) of this Title. The
				  use of exclusionary time out in the
absence
of an approved
				  behavior support plan that incorporates the use of exclusionary time-out, or a
				  failure to implement such a plan as designed, is considered to be "seclusion"
				  and is prohibited.
(2)
Unauthorized use of time-out.
For the purposes of this
				subclause only, 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, for disciplinary purposes, or as a substitute
				for programming;
Note: For the purposes of this provision "unauthorized use of
				  time out" includes any use of time out that is inconsistent with an
				  individual's plan of services except as noted in subclause (
1
)
				  of this clause.
(3) except
				as provided for in paragraph (7) of this subdivision, the
Administration of a prescribed or over-the-counter medication that is
				inconsistent with a prescription
or order issued for a service
				recipient by a licensed, qualified health care practitioner, and that has an
				adverse effect on an individual receiving services. For purposes of this
				clause, "adverse effect" means the unanticipated and undesirable side effect
				from the administration of a particular medication which unfavorably affects
				the wellbeing of a person receiving services;
(4)
Inappropriate use of
				restraints.
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 an individual's plan of services (including a
				behavior support plan), generally accepted treatment practices, and/or
				applicable federal or state laws, regulations or policies. For the purposes of
				this subdivision, a "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; and
(5)
Other mistreatment.
Other conduct on the part of a custodian, that is inconsistent with the
				individual's plan of services, generally accepted treatment practices, and/or
				applicable federal or state laws, regulations or policies, and that impairs or
				creates a reasonably foreseeable potential to impair the health, safety, or
				welfare of an individual receiving services, except as described in subclauses
				(
1
) through (
4
) of this clause;
(c)
Missing
				person.
The unexpected absence of an individual receiving services
				that based on the person's history and current condition exposes him or her to
				risk of injury;
(d)
Choking, with known risk.
The partial or complete blockage of
				the upper airway by an inhaled or swallowed foreign body, including food, that
				leads to a partial or complete inability to breathe, involving an individual
				with a known risk for choking and a written directive addressing that risk;
				or
(e)
Self-abusive
				behavior, with injury.
A self-inflicted injury to an individual
				receiving services that requires medical care beyond first aid.
(ii) the following types of
				incidents on and after January 1, 2016:
(a)
Conduct between persons receiving services that would constitute
				abuse
as described in paragraphs (1) through (7) of this subdivision
				if committed by a custodian, except sexual activity involving adults who are
				capable of consenting and consent to the activity; or
(b)
Conduct on the part of a
				custodian, that is inconsistent with the individual's plan of
				services
, generally accepted treatment practices, and/or applicable
				federal or state laws, regulations, or policies, and that impairs or creates a
				reasonably foreseeable potential to impair the health, safety, or welfare of an
				individual receiving services; including
(1)
Seclusion.
The placement of an individual receiving services
				in a room or area from which he or she cannot, or perceives that he or she
				cannot, leave at will, except when such placement is specifically permitted by
				section
				633.16 
				of this Title. Unless permitted by Section
				633.16,
				the use of seclusion is prohibited;
Note: Section
				  633.16 
				  of this Title (Person-Centered Behavioral Intervention) identifies a form of
				  "exclusionary time out," which prevents egress from a time out room by a
				  custodian's direct and continuous action, and requires constant visual and
				  auditory monitoring. Use of exclusionary time out may be included in a formal
				  behavior support plan and implemented in accordance with the conditions and
				  limits set forth in paragraph 633.16(j)(3) of this Title. The use of
				  exclusionary time out in the absence of an approved behavior support plan that
				  incorporates the use of exclusionary time-out, or a failure to implement such a
				  plan as designed, is considered to be "seclusion" and is prohibited.
(2)
Unauthorized use of
				time-out
. For the purposes of this subclause only, 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,
				for disciplinary purposes, or as a substitute for programming;
Note: For the purposes of this provision "unauthorized use of
				  timeout" includes any use of time out that is inconsistent with an individual's
				  plan of services except as noted in subclause (
1
) of this
				  clause.
(3) except as
				provided for in paragraph (7) of this subdivision, the
administration
				of a prescribed or over-the-counter medication that is inconsistent with a
				prescription or order
issued for a service recipient by a licensed
				qualified health care practitioner, and that has an adverse effect on an
				individual receiving services. For purposes of this clause, "adverse effect"
				means the unanticipated and undesirable side effect from the administration of
				a particular medication which unfavorably affects the wellbeing of a person
				receiving services;
(4)
Inappropriate use of restraints
. 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 an individual's plan of
				services (including a behavior support plan), generally accepted treatment
				practices, and/or applicable federal or state laws, regulations, or policies.
				For the purposes of this subdivision, a "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; and
(5)
Mistreatment
. Other conduct on the part of a custodian,
				inconsistent with the individual's plan of services, generally accepted
				treatment practices, and/or applicable federal or state laws, regulations, or
				policies, and that impairs or creates a reasonably foreseeable potential to
				impair the health, safety, or welfare of an individual receiving services,
				except as described in any other provision of this subdivision.
(c)
Missing
				person at risk for injury.
The unexpected absence of an individual
				receiving services that based on the person's history and current condition
				exposes him or her to risk of injury;
(d)
Unauthorized absence
.
				The unexpected or unauthorized absence of a person after formal search
				procedures (see glossary, section
				624.20) have
				been initiated by the agency. Reasoned judgments, taking into consideration the
				person's habits, deficits, capabilities, health problems, etc., determine when
				formal search procedures need to be implemented. It is required that formal
				search procedures must be initiated immediately upon discovery of an absence
				involving a person whose absence constitutes a recognized potential danger,
				except as defined in clause (
c
) of this subparagraph, to the
				wellbeing of the person or others;
(e)
Choking, with known
				risk.
The partial or complete blockage of the upper airway by an
				inhaled or swallowed foreign body, including food, that leads to a partial or
				complete inability to breathe, involving an individual with a known risk for
				choking and a written directive addressing that risk;
(f)
Choking, with no known
				risk
. For the purposes of this paragraph, partial or complete blockage
				of the upper airway by an inhaled or swallowed foreign body, including food,
				that leads to a partial or complete inability to breathe, other than a
choking, with known risk
, incident (see clause
				(
e
) of this subparagraph), involving an individual with a
				known risk for choking and a written directive addressing that risk;
(g)
Self-abusive behavior, with
				injury.
A self-inflicted injury to an individual receiving services
				that requires medical care beyond first aid;
(h)
Injury, with hospital
				admission.
An injury that results in the admission of a service
				recipient to a hospital for treatment or observation, except as defined in
				clause (
g
) of this subparagraph;
(i)
Theft and financial
				exploitation.
Any suspected theft of a service recipient's personal
				property (including personal funds or belongings) or financial exploitation,
				involving a value of more than $100.00; theft involving a service recipient's
				credit, debit, or public benefit card (regardless of the amount involved); or a
				pattern of theft or financial exploitation involving the property of one or
				more individuals receiving services;
(j)
Other significant
				incident
. An incident that occurs under the auspices of an agency, but
				that does not involve conduct on the part of a custodian, and does not meet the
				definition of any other incident described in this subdivision, but 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.