N.Y. Comp. Codes R. & Regs. tit. 14 § 524.5

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

Section 524.5 - Incident category definitions

For purposes of reporting incidents pursuant to Section 524.7 of this Part, the following terms are defined; provided, however, nothing contained herein shall be construed as restricting the discretion of the Justice Center in categorizing incident reports:

(a)Abuse: any of the following acts of a custodian:

(1)Physical Abuse: intentionally or recklessly causing, by physical contact, physical injury or serious or protracted impairment of the physical, mental, or emotional condition of a patient or causing the likelihood of such injury or impairment; such conduct may include, but is not limited to slapping, hitting, kicking, biting, choking, smothering, shoving, dragging, throwing, punching, shaking, burning, cutting, or the use of corporal punishment, provided, however, that this shall not include reasonable emergency interventions necessary to protect the safety of any person.

(2)Psychological Abuse: intentionally or recklessly causing, by verbal or non-verbal conduct, a substantial diminution of a patient'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.

(3)Sexual Abuse: conduct that subjects a patient to any offense defined in Article 130 (sex offenses) or Section 255.25 (incest, 3^rd degree), 255.26 (incest, 2^nd degree), or 255.27 (incest, 1^st degree) of the Penal Law, or any conduct or communication that allows, permits, uses or encourages a patient to engage in any act described in Articles 230 (prostitution offenses) or 263 (sexual performance by a child) of the Penal Law.

(4)Deliberate Inappropriate Use of Restraint:

(i) The application of restraint, as defined in Section 526.4 of this Title, shall constitute abuse when such application is deliberately inappropriate. For purposes of this Part, "deliberately inappropriate" shall mean any use of restraint for any reason other than as an emergency safety intervention.

(ii) The application of restraint shall not constitute abuse when such application is necessary and performed in accordance with applicable laws and regulations.

(iii) In situations in which alternative procedures and methods not involving the use of physical force cannot reasonably be employed, nothing in this Section shall be construed to prohibit the use of reasonable physical force when necessary to protect the life and limb of any person.

(5)Obstruction of reports of Reportable Incidents: conduct that impedes the discovery, reporting or investigation of treatment of a patient by falsifying records related to the safety, treatment or supervision of a patient, 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 or the investigation of an incident, intentionally making a false statement or intentionally withholding material information during an investigation into such a report in accordance with governing state agency regulations, policies, or procedures; intentional failure of a supervisor or manager to act upon such a report, or failure by a Mandated Reporter to report a reportable incident upon discovery, (unless the report is made in accordance with the provisions of subdivision (e) of Section 524.8 of this Part).

(6)Unlawful use or administration of a controlled substance: any administration to a patient of a controlled substance, as defined by Article 33 of the Public Health Law without a lawful prescription, or other medication not approved for any use by the federal Food and Drug Administration, and/or unlawful use or distribution of a controlled substance as defined by Article 33 of the Public Health Law at the workplace or while on duty.

(7)Aversive conditioning: the use of unpleasant physical stimulus to modify behavior without person-specific legal authorization, provided, however, that any use of aversive conditioning is prohibited in facilities under the jurisdiction of the Office.

(b)Assault: a violent or forceful physical attack by a person other than a custodian, in which a patient is either the victim, or aggressor, and which results in serious injury or harm.

(c)Crime: an event which is or appears to be a crime under New York State or Federal law, which occurs on program premises or when a patient is under the actual or intended supervision of a custodian, and which involves a patient as a victim, or which affects or has the potential to affect the health or safety of one or more patients of the program or has the potential to have a significant adverse impact on the property or operation of the program.

For the purposes of this Part, crimes shall include acts committed by persons less than 16 years of age which, if committed by an adult, would constitute a crime.

(d)Crimes in the Community: an event which is, or appears to be, a crime under New York State or Federal law, and which is perceived to be a significant danger to the community or which involves a patient whose behavior poses an imminent concern to the community.

(e)Falls by patients: events where patients trip, slip, or otherwise fall while in an inpatient or residential setting, resulting in serious injury or harm.

(f)Fight: a physical altercation between two or more patients, in which there is no clear aggressor and no clear victim, resulting in serious injury or harm.

(g)Financial exploitation: use, appropriation, or misappropriation by a custodian of a patient's resources, including but not limited to funds, assets, or property, by deception, intimidation, or similar means, with the intent to deprive the patient of those resources. Examples include the deliberate misplacement, theft, or wrongful, temporary, or permanent use of a patient's belongings or money.

(h)Fire setting: action by a patient of a mental health provider, either deliberate or accidental, that results in fire on program premises.

(i)Injury of unknown origin: an injury to a patient for which a cause cannot be immediately determined because:

(1) the source of the injury was not observed by any person or the source of the injury could not be explained by the patient or other person; and

(2) the injury is suspicious because of the extent of the injury, the location of the injury (e.g., the injury is located in an area not generally vulnerable to trauma), the number of injuries observed at one particular point in time, or the frequency of the incidence of injuries over time.

(j)Medication error: an error in prescribing, dispensing, or administering a drug which results in serious injury or harm.

(k)Missing patient:

(1) a patient of an inpatient or residential program who has not been accounted for when expected to be present (in accordance with facility or program practice or policies) and who has not been found on the facility grounds or other expected location, or who is known to have left the facility grounds without the permission of an employee, when such permission is otherwise required and who is considered dangerous to others or unable to care for him/herself; or

(2) a patient of an outpatient mental health program who is under the age of 18, and whose whereabouts are not accounted for when expected to be present or under the supervision of an employee.

(l)Missing subject of AOT Order: A person subject to an Assisted Outpatient Treatment (AOT) order who fails to keep a scheduled appointment and/or who cannot be located within a 24 hour period.

(m)Mistreatment:

(1) use of restraint, as defined in Section 526.4 of this Title, that is inappropriate because it was implemented without a valid physician's order or in a manner that was otherwise not compliant with applicable state or federal regulations, but which does not rise to the level of physical abuse, as defined in this section;

(2) use of seclusion, as defined in Section 526.4 of this Title, that was unauthorized because it was implemented without a valid physician's order or in a manner that was otherwise not compliant with applicable state or federal regulations;

(3) removal of a patient from regular programming to isolate him/her in an area for the convenience of a custodian or as a substitute for programming; or

(4) any intentional administration to a patient of a prescription drug or over-the-counter medication which is not in substantial compliance with a physician's, dentist's, physician's assistant's, specialist's assistant's, or nurse practitioner's prescription;

(n)Neglect: 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 patient. Neglect shall include, but is not limited to:

(1) failure to provide proper supervision, including a lack of proper supervision that results in conduct between persons receiving services that would constitute abuse if committed by a custodian;

(2) failure to provide adequate food, clothing, shelter, medical, dental, optometric or surgical care, consistent with the rules or regulations of the Office, provided that the mental health provider 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; and

(3) 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 patient's individualized education program.

(o)Other Incident: An event, other than one identified in this section, which has or creates a risk of, a serious adverse effect on the life, health, or safety of a patient.

(p)Self-abuse: self-inflicted injury not intended to result in death that results in serious injury or harm.

(q)Severe adverse drug reaction: an unintended, unexpected, or excessive response of a patient to a medication that occurs at doses normally used in patients for prophylaxis, diagnosis or therapy of disease, or for the modification of physiologic function and which:

(1) results in transfer to an emergency room, admission to a medical facility, or a longer hospital stay;

(2) requires intervention to prevent permanent impairment;

(3) results in permanent disability;

(4) results in congenital anomaly (birth defect);

(5) is life threatening; or

(6) results in death.

(r)Sexual assault: a sexual attack including but not limited to those that result in vaginal, anal, or oral penetration, i.e., rape or attempted rape and sodomy or attempted sodomy; and/or any sexual contact between a person who is 18 years old or more and a person who is less than 15 years old, or between a person who is 21 years of age or older and a person who is less than 17 years old, or which involves a patient who is deemed incapable of consent.

(s)Sexual contact between children: vaginal, anal, or oral penetration by patients under age 18 that occurs in a setting where the patient receives around-the-clock care or on the premises of an outpatient program.

(t)Suicide attempt: an act committed by a patient of a mental health provider in an effort to cause his or her own death that occurs on program premises or when the patient was under the actual or intended supervision of a custodian.

(u)Suicide attempt, Off Site: an act committed by a patient of a mental health provider in an effort to cause his or her own death that occurs off program premises, when the patient was not under the actual or intended supervision of a custodian.

(v)Verbal Aggression by Patients: a sustained, repetitive action or pattern by a patient or patients of ridiculing, bullying, demeaning, making derogatory remarks, verbally harassing, or threatening to inflict physical or emotional harm on another patient or patients, which causes serious injury or harm.

(w)Wrongful Conduct: Actions or inactions on the part of a custodian that are contrary to sound judgment or training and which are related to the provision of services, the safeguarding of patient health, safety, or welfare, or patient rights, but which do not meet the definition of abuse or neglect, including but not limited to:

(1) any non-accidental physical contact with a patient which causes minor injury or has the reasonably foreseeable potential to cause injury, provided however that this shall not include the application of restraint, when such application is necessary and performed in accordance with applicable laws and regulations, or reasonable emergency interventions necessary to protect the safety of any person;

(2) intentional verbal or nonverbal conduct that is meant to cause a patient emotional distress, but which does not result in harm, or results in only minor harm, to the patient. Examples include taunting, name calling, issuing threats, using insulting, disrespectful, or coarse language or gestures directed toward a patient; violating patient rights or misusing authority;

(3) activity of a sexual nature (physical or non-physical) involving a patient and a custodian; or activity of a sexual nature involving a patient that is encouraged by a custodian. Examples include inappropriate touching or physical contact, sending sexually explicit materials through electronic means (including mobile phones, electronic mail, etc.), voyeurism, or sexual exploitation; or

(4) conduct that falls below the standards of behavior established in regulations or facility policies and procedures for the protection of patients against unreasonable risk of harm (e.g., sleeping while on duty).

N.Y. Comp. Codes R. & Regs. Tit. 14 § 524.5

Adopted New York State Register December 9, 2015/Volume XXXVII, Issue 49, eff. 12/9/2015