N.Y. Comp. Codes R. & Regs. tit. 14 § 836.4

Current through Register Vol. 46, No. 50, December 11, 2024

Section 836.4 - Definitions

As used in this Part, unless otherwise indicated, the terms listed below shall have the following meanings:

(a)

(1) "Incident" means an event or happening, accident or injury during the conduct of any program activity which involves a client, a custodian, or damage to the facility in which the program operates and which has, or may have, an adverse or endangering effect on the life, health or welfare of clients or custodians and is required to be reported, investigated and recorded to designated parties according to Article eleven of the social services law and procedures approved by the Office, reviewed by an Incident Review Committee, and acted upon in an appropriate manner to safeguard the well-being of clients and custodians and to bring the matter to closure.

(2) Incidents are either "reportable" to the Justice Center or "nonreportable."

(3) "Non-reportable" incidents need not be reported to the Justice Center, or if they are reported may be determined as not within the jurisdiction of the Justice Center; nevertheless, these incidents may require documentation in a patient's clinical record or as an incident related to the program or facility which must be maintained by the service provider for review by the provider's Incident Review Committee, or by the Office or the Justice Center, upon request.

(b) ''Reportable incident'' means an incident of "abuse or neglect" or a "significant incident" as defined in subdivision (c) or (d) of this section; some patient deaths are also a reportable incident.

(c) "Abuse or neglect" means a reportable incident described by the following conduct that a mandated reporter is required to report to the Vulnerable Persons' Central Register ("VPCR") via a toll-free hotline:

(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 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. In addition, a hotline call shall be made immediately when an injury cannot be explained and investigation is needed because of the:

(i) Extent and/or location of the injury;

(ii) Number of injuries at one time; or

(iii) Frequency of injuries over time.

(2) "Sexual abuse" means 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.

(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. Such conduct shall be reported to the Justice Center when a mandated reporter has reasonable cause to suspect that it occurred, even though no clinical assessment has been undertaken to determine its impact on the service recipient.

(4) "Deliberate inappropriate use of restraints" means the use of a restraint when the technique, the amount of force or the situation in which the restraint is used is deliberately inconsistent with a service recipient's individual treatment/recovery 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 Part 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. A deliberate inappropriate restraint may include, among other things, a finding that a restraint was used as a punishment or for the convenience of staff.

(5) "Use of aversive conditioning" means the application of a physical stimulus 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 pursuant to law, regulations and clinical guidance. 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 from making a report of a reportable incident to the Vulnerable Persons' Register with the intent to suppress the reporting or 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 Office regulations, policies or procedures; or, for a mandated reporter who is a custodian as defined in subdivision (d) of this section, 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 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. 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.

(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:

(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; or

(ii) failure to provide adequate food, clothing, shelter, medical, dental, optometric or surgical care, consistent with the rules or regulations promulgated by the Office, 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.

(d) "Significant incident" means a reportable incident, other than an incident of abuse or neglect as defined in subdivision (c) of this section, which 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 is not limited to:

(1) conduct between persons receiving services that would constitute abuse as described in paragraphs (1) through (7) of subdivision (c) of this section, if committed by a custodian; and

(2) conduct on the part of a custodian, inconsistent with a service recipient's individual treatment/recovery plan, 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:

(i) 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;

(ii) 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;

(iii) except as provided for in paragraph (7) of subdivision (c) 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 subparagraph, "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;

(iv) inappropriate use of restraints, which shall mean the use of a restraint when the technique, the amount of force or the situation in which the restraint is used are inconsistent with a service recipient's individual treatment/recovery plan, generally accepted treatment practices and/or applicable federal or state laws, regulations or policies; or

(3) Other significant incidents, including but not limited to:

(i) An event that is, or appears to be, a crime under New York state or federal law involving custodians, clients, or others, including children of service recipients in a residential program, as victims or perpetrators;

(ii) Body cavity search; which is explicitly prohibited pursuant to Part 815 of this Title;

(iii) Any violation of a client's rights to confidentiality pursuant to 42 CFR Part 2 or the Health Insurance Portability and Accountability Act (HIPAA).

(iv) Missing client as defined in subdivision (u) of this section;

(v) Suicide attempt whether or not preceded by statements of intent; statement of intent alone is not a suicide attempt; statements of intent should be recorded in a patient's clinical record;

(vi) Death of a custodian or mandated reporter during the course of his/her job duties related to the provider facility; shall also be reported to any other appropriate entity;

(vii) Death of an outpatient client if death occurs on program premises or during the course of program activities.

(e) "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.

(f) "Facility" or "provider agency" shall mean a facility or program in which services are provided and which is operated, licensed or certified by the Office. Such facilities and provider agencies are within the jurisdiction of the Justice Center for purposes of reporting reportable incidents to the Justice Center's Vulnerable Persons' Central Register.

(g) "Mandated reporter" means a custodian or a human services professional, but shall not include a service recipient.

(h) "Human services professional" means 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; peace officer; police officer; district attorney or assistant district attorney; investigator employed in the office of a district attorney; or other law enforcement official.

(i) "Physical injury" and "impairment of physical condition" means any confirmed harm, hurt or damage resulting in a significant worsening or diminution of an individual's physical condition.

(j) "Delegate investigatory entity" means a facility or provider agency, or any other entity authorized by regulations of the Office or the Justice Center to conduct an investigation of a reportable incident.

(k) "Justice Center" means the Justice Center for the Protection of People with Special Needs established pursuant to Chapter 501 of the Laws of 2012.

(l) "Person receiving services," or "service recipient" means a client who receives or has received services from a facility or provider agency.

(m) "Personal representative" means 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 a service recipient's parent, guardian or other person legally responsible for the service recipient.

(n) "Subject of the report" means a custodian, as defined in subdivision (e) 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 (q) of this section.

(o) "Other persons named in the report" means and is limited to the following persons who are named in a report to the Vulnerable Persons' 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 (m) of this section.

(p) "Vulnerable Persons' Central Register" means the statewide central register of reportable incidents involving vulnerable persons, which shall operate in accordance with section four hundred ninety-two of Article 11 of the social services law.

(q) "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.

(r) "Intentionally" and "recklessly" shall have the same meanings as provided in subdivisions one and three of section 15.05 of the penal law.

(s) "Clinical records" means information concerning or related to the examination or treatment of a person receiving services from a provider agency.

(t) "Incident management program" means a plan developed and maintained by service providers pursuant to section 836.5 of this Part including specifications for the identification, investigation, reporting and appropriate response to any incident and review by the provider's Incident Review Committee.

(u) "Missing client" means a client

(1) over the age of eighteen in a residential facility who has not been accounted for when and where such client is expected to be present and, after 24 hours, whose location has not been determined by means of immediate and appropriate diligent efforts (a client is accounted for and not missing if staff has received information regarding the patient's intention to leave treatment against medical advice or to remove himself/herself to a specific location outside of the facility with or without an approved pass); or

(2) under the age of eighteen in a residential facility who has not been accounted for when and where such client is expected to be present and, after 24 hours, whose location has not been determined by means of immediate and appropriate diligent efforts (a client is accounted for and not missing if staff has received information regarding the patient's intention to leave treatment against medical advice or to remove himself/herself to a specific location outside of the facility with or without an approved pass, or is known to be in the custody of a parent or guardian).

(v) "Qualified person" means an individual receiving services or his or her personal representative as defined in subdivision (l) of this section.

(w) "Staff" means custodians identified as an administrator, licensed clinician, contractor, employee, consultant, volunteer, intern, peer advocate, agent, or counselor trainee affiliated with a program certified, licensed, funded, or operated by the Office.

(x) "Incident Review Committee" means a committee required by a facility Incident management program and established pursuant to section 836.5 of this Title.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 836.4

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 11/20/2015

Amended New York State Register July 27, 2016/Volume XXXVIII, Issue 30, eff.7/27/2016

Amended New York State Register September 14, 2022/Volume XLIV, Issue 37, eff. 10/1/2022