New York Codes, Rules and Regulations › Title 18 - DEPARTMENT OF SOCIAL SERVICES › Chapter II - Regulations of the Department of Social Services › Subchapter C - Social Services › Article 2 - Family and Children's Services › Part 433 - Abuse, Neglect and Significant Incidents Involving Vulnerable Persons › Section 433.2 - Definitions

Current through Register Vol. 46, No. 28, July 10, 2024
When used in this Part:
(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.