N.Y. Comp. Codes R. & Regs. tit. 18 § 433.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 433.2 - Definitions

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.

(i)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.

(j)Delegate investigatory entity shall mean a facility or provider agency, or any other entity authorized by the regulations of the Office of Children and Family Services or the Justice Center.

(k)Person receiving services or service recipient shall mean an individual who is an inpatient in a residential facility or who receives services from a facility or provider agency.

(l)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 the 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.

(m)Abuse or neglect shall mean conduct described in paragraphs (1) through (8) of this section.

(n)Subject of the report shall mean a custodian who is reported to the Vulnerable Persons' Central Register for the alleged abuse or neglect of a vulnerable person.

(o)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.

(p)Intentionally and recklessly shall have the same meanings as provided in subdivisions one and three of section 15.05 of the Penal Law.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 433.2

Amended New York State Register December 23, 2015/Volume XXXVII, Issue 51, eff. 12/23/2015