§ 488. Definitions. As used in this article, the following terms shall
have the following meanings:

1. "Reportable incident" shall mean the following conduct that a
mandated reporter is required to report to the vulnerable persons'
central register:

(a) "Physical abuse," which shall mean 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.

(b) "Sexual abuse," which shall mean 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.
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 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.

(c) "Psychological abuse," which shall mean 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.

(d) "Deliberate 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
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. For purposes of this subdivision, 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.

(e) "Use of aversive conditioning," which shall mean 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 operating,
licensing or certifying state agency pursuant to governing state agency
regulations. 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.

(f) "Obstruction of reports of reportable incidents," which shall mean
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 statewide 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 state agency
regulations, policies or procedures; or, for a mandated reporter who is
a custodian as defined in subdivision two of this section, failing to
report a reportable incident upon discovery.

(g) "Unlawful use or administration of a controlled substance," which
shall mean 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, 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 thirty-three of the public health law,
at the workplace or while on duty.

(h) "Neglect," which shall mean 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 (a) through (g) of this subdivision if
committed by a custodian; (ii) failure to provide adequate food,
clothing, shelter, medical, dental, optometric or surgical care,
consistent with the rules or regulations promulgated by the state agency
operating, certifying or supervising the facility or provider agency,
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.

(i) "Significant incident" shall mean 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 shall not
be limited to:

(1) conduct between persons receiving services that would constitute
abuse as described in paragraphs (a) through (g) of this subdivision if
committed by a custodian; or

(2) conduct on the part of a 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 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;

(B) 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;

(C) except as provided for in paragraph (g) of subdivision one 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 paragraph, "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;

(D) 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 service recipient's individual plan, generally accepted treatment
practices and/or applicable federal or state laws, regulations or
policies. For the purposes of this subdivision, 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; or

(3) any other conduct identified in regulations of the state oversight
agency, pursuant to guidelines or standards established by the executive
director.

2. "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.

3. "Executive director" shall mean the executive director of the
justice center for the protection of people with special needs as
established by article twenty of the executive law.

4. "Facility" or "provider agency" shall mean:

(a) a facility or program in which services are provided and which is
operated, licensed or certified by the office of mental health, the
office for people with developmental disabilities or the office of
addiction services and supports, including but not limited to
psychiatric centers, inpatient psychiatric units of a general hospital,
developmental centers, intermediate care facilities, community
residences, group homes and family care homes, provided, however, that
such term shall not include a secure treatment facility as defined in
section 10.03 of the mental hygiene law, services defined in paragraphs
four and five of subdivision (a) of section 16.03 of the mental hygiene
law, or services provided in programs or facilities that are operated by
the office of mental health and located in state correctional facilities
under the jurisdiction of the department of corrections and community
supervision;

(b) any program or facility that is operated by the office of children
and family services for juvenile delinquents or juvenile offenders
placed in the custody of the commissioner of such office and any
residential programs or facilities licensed or certified by the office
of children and family services, excluding foster family homes and
residential programs for victims of domestic violence;

(c) adult care facilities, which shall mean adult homes or enriched
housing programs licensed pursuant to article seven of this chapter: (i)
(A) that have a licensed capacity of eighty or more beds; and (B) in
which at least twenty-five percent of the residents are persons with
serious mental illness as defined by subdivision fifty-two of section
1.03 of the mental hygiene law; (ii) but not including an adult home or
enriched housing program which is authorized to operate fifty-five
percent or more of its total licensed capacity of beds as assisted
living program beds pursuant to section four hundred sixty-one-l of this
chapter;

(d) any overnight, summer day and traveling summer day camps for
children with developmental disabilities as defined in regulations
promulgated by the commissioner of health; or

(e) the New York state school for the blind and the New York state
school for the deaf, which operate pursuant to articles eighty-seven and
eighty-eight of the education law; an institution for the instruction of
the deaf and the blind which has a residential component and is subject
to the visitation of the commissioner of education pursuant to article
eighty-five of the education law with respect to its day and residential
components; special act school districts serving students with
disabilities; or in-state private schools which have been approved by
the commissioner of education for special education services or
programs, and which have a residential program.

4-a. "State oversight agency" shall mean the state agency that
operates, licenses or certifies an applicable facility or provider
agency; provided however that such term shall only include the following
entities: the office of mental health, the office for people with
developmental disabilities, the office of alcoholism and substance abuse
services, the office of children and family services, the department of
health and the state education department. "State oversight agency" does
not include agencies that are certification agencies pursuant to federal
law or regulation.

5. "Mandated reporter" shall mean a custodian or a human services
professional, but shall not include a service recipient.

5-a. "Human services professional" shall mean 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 of
alcoholism and substance abuse services; peace officer; police officer;
district attorney or assistant district attorney; investigator employed
in the office of a district attorney; or other law enforcement official.

6. "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.

7. "Delegate investigatory entity" shall mean a facility or provider
agency, or any other entity authorized by the regulations of a state
oversight agency or the justice center for the protection of people with
special needs to conduct an investigation of a reportable incident.

8. "Justice center" shall mean the justice center for the protection
of people with special needs.

9. "Person receiving services," or "service recipient" shall mean an
individual who resides or is an inpatient in a residential facility or
who receives services from a facility or provider agency.

10. "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 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.

11. "Abuse or neglect" shall mean the conduct described in paragraphs
(a) through (h) of subdivision one of this section.

12. "Subject of the report" shall mean a custodian, as defined in
subdivision two 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 eleven of this section.

13. "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, as defined in subdivision ten of this section.

14. "Vulnerable persons' central register" shall mean the statewide
central register of reportable incidents involving vulnerable persons,
which shall operate in accordance with section four hundred ninety-two
of this article.

15. "Vulnerable person" shall mean 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.

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