New York Codes, Rules and Regulations › Title 8 - EDUCATION DEPARTMENT › Chapter II - Regulations of the Commissioner › Subchapter P - Handicapped Children › Part 200 - Children with Handicapping Conditions › Section 200.15 - Standards for the protection of day and residential students who attend a residential school governed by this section

Current through Register Vol. 46, No. 28, July 10, 2024
The purpose of this section is to protect students in
					 residential schools against abuse, neglect and other conduct that may
					 jeopardize their health, safety and welfare, consistent with the provisions of
					 chapter 501 of the Laws of 2012 "Protection of People with Special Needs Act,"
					 including article 20 of the Executive Law, article 11 of the Social Services
					 Law, and sections 4212, 4314, 4358 and
					 4403  of the Education Law.
(a) Applicability.
This section shall apply to residential schools, with
					 respect to their day and residential components, including approved in-State
					 residential schools, State-operated schools, State-supported schools which have
					 a residential component, special act school districts as such term is defined
					 in section 4001 (8)  of the Education
					 Law and, except as otherwise indicated, approved out-of-state residential
					 schools.
(b) Definitions.
As used in this section, the following terms shall have the
					 following meanings, consistent with the definitions of such terms in article 11
					 of the Social Services Law:
(1)
Custodian
means a director, operator, employee or volunteer of
				  a residential school; or a consultant or an employee or volunteer of a
				  corporation, partnership, organization or governmental entity which provides
				  goods or services to a residential school pursuant to contract or other
				  arrangement that permits such person to have regular and substantial contact
				  with individuals who are cared for by the residential school.
(2)
Justice Center
means the
				  Justice Center for the Protection of People with Special Needs established
				  pursuant to article 20 of the Executive Law.
(3)
Reportable incident
means the following conduct that a mandated reporter is required to report to
				  the Vulnerable Persons' Central Register:
(i)
Abuse
means physical abuse, sexual abuse, psychological abuse,
				  deliberate inappropriate use of restraints, unauthorized use of aversive
				  interventions, obstruction of reports of reportable incidents, and unlawful use
				  or administration of a controlled substance.
(a)
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 of a student 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 physical restraints, as
				  defined in section
				  19.5(b)(7)  of this
				  Title, necessary to protect the safety of any person.
(b)
Sexual abuse
means any
				  conduct by a custodian that subjects a student 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 student to engage in any act described in article 230 or 263 of
				  the Penal Law, except as otherwise provided in section 488 (1)(b)  of the Social
				  Services Law.
(c)
Psychological abuse
means conduct by a custodian intentionally
				  or recklessly causing, by verbal or non-verbal conduct, a substantial
				  diminution of a student'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 student 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
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 student's individual treatment plan
				  or behavioral intervention plan, generally accepted treatment practices and/or
				  any applicable Federal or State laws, regulations or policies including but not
				  limited to the prohibition of the use of corporal punishment and aversive
				  interventions in section
				  19.5 
				  of this Title, except when the restraint is used as a reasonable physical
				  restraint, as defined in section
				  19.5(b)(7)  of this
				  Title, 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 student to freely move his or her arms, legs or body.
(e)
Use of aversive
				  interventions
, as such term is defined in section
				  19.5(b)(1)  of this
				  Title, means an intervention that is intended to induce pain or discomfort to a
				  student for the purpose of eliminating or reducing student behaviors.
(f)
Obstruction of reports of
				  reportable incidents
means conduct by a custodian that impedes the
				  discovery, reporting or investigation of the treatment of a student by
				  falsifying records related to the safety, treatment or supervision of a
				  student, actively persuading a mandated reporter from making a report of a
				  reportable incident to the 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 regulations,
				  policies or procedures; or for a mandated reporter who is a custodian, failing
				  to report a reportable incident upon discovery.
(g)
Unlawful use
or
administration of a controlled substance
means:
(1) any administration by a custodian to a
				  student of a controlled substance as defined by article 33 of the Public Health
				  Law, without a prescription;
(2)
				  any administration by a custodian to a student of other medication not approved
				  for any use by the United States Food and Drug Administration: or
(3) 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.
(ii)
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 student. Neglect
				  shall include, but is not limited to:
(a)
				  failure to provide proper supervision, including lack of proper supervision
				  that results in conduct between students that would, if committed by a
				  custodian, constitute abuse as described in subparagraph (i) of this
				  paragraph;
(b) failure to provide
				  adequate food, clothing, shelter, medical, dental optometric or surgical care,
				  consistent with any rules and regulations governing the same, provided that the
				  residential school 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
(c) 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 student's
				  individualized education program.
(iii)
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 student and shall include but not be limited to:
(a) conduct between students that would, if
				  committed by a custodian, constitute abuse as defined in subparagraph (i) of
				  this paragraph; or
(b) conduct on
				  the part of the custodian, which is inconsistent with a student's individual
				  treatment plan or IEP, 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
				  student, including but not limited to:
(1)
unauthorized seclusion
, which shall mean the placement of a
				  student in a room or area from which he or she cannot, or perceives that he or
				  she cannot, leave at will, or the placement of the child unsupervised or
				  unobserved in a room from which the student cannot exit without
				  assistance;
(2)
unauthorized use of timeout
, which means the use of a
				  procedure in which a student 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 timeout, as defined in section
				  19.5(b)(11)  of
				  this Title, to protect the health or safety of the individual or other persons
				  or the use of timeout used in conjunction with a student's IEP or behavioral
				  intervention plan pursuant to section
				  200.22(c)  of this
				  Part;
(3) except as provided for in
				  subparagraph (5)(vii) of this subdivision, the administration of a prescribed
				  or over-the-counter medication, which is inconsistent with a prescription or
				  order issued for a student by a licensed, qualified health care practitioner,
				  and which has an adverse effect on a student.
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 student; or
(4)
				  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 student's individual
				  treatment plan or behavioral intervention plan, generally accepted treatment
				  practices and/or any applicable Federal or State laws, regulations or policies
				  including but not limited to the prohibition of the use of corporal punishment
				  and aversive interventions in section
				  19.5 
				  of this Title.
Restraint
includes the use of any manual,
				  pharmacological or mechanical measure or device to immobilize or limit the
				  ability of a student to freely move his or her arms, legs or body.
(4) Staff exclusion list means the register,
				  developed and maintained by the Justice Center pursuant to section 495  of the Social Services Law, of subjects
				  of reports who have been found to have a substantiated category one case of
				  abuse or neglect.
(5)
Subject of the report
means a custodian who is reported to the
				  Vulnerable Persons' Central Register for the alleged abuse or neglect of a
				  student.
(6)
Vulnerable
				  Persons' Central Register
means the Statewide Central Register of
				  reportable incidents established and operated in accordance with section 492  of the Social Services Law.