N.Y. Comp. Codes R. & Regs. tit. 18 § 488.2

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

Section 488.2 - Definitions

(a)An enriched housing program means an adult care facility established and operated for the purpose of providing long-term residential care to five or more adults, primarily persons 65 years of age or older, in community-integrated settings resembling independent housing units. Such programs must provide or arrange for the provision of room, and provide board, housekeeping, personal care and supervision.

(b) For the purposes of this Part an enriched housing program will be considered to be serving persons primarily 65 years of age or older if no more than 25 percent of the residents are under 65 years of age and each resident is at least 55 years of age.

(c) The following additional definitions shall apply to facilities subject to the Justice Center as defined in paragraph (11) of this subdivision:

(1)Abuse shall mean inappropriate physical contact with a resident of an adult care facility while the resident is under the supervision of the facility, which harms or is likely to harm the resident. Inappropriate physical contact includes, but is not limited to, striking, pinching, kicking, shoving, bumping and sexual molestation. Abuse shall, in addition, include inappropriate use of restraints as defined in this Part, and those actions incorporated within the definitions of physical abuse,sexual abuse,psychological abuse,deliberate inappropriate use of restraints,use of aversive conditioning,obstruction of reports of reportable incidents, and unlawful use or administration of a controlled substance all as defined in section 488 of the Social Services Law. However, for purposes of reporting, psychological abuse need not be supported by a clinical assessment in order to be reported, so long as there is reasonable basis to believe that such abuse has occurred.

(2)Mistreatment shall mean confinement, isolation, intimidation, abandonment or use of physical restraints on a resident of an adult care facility while the resident is under the supervision of staff. Mistreatment shall, in addition, include those actions incorporated within the definition of neglect set forth in section 488 of the Social Services Law.

(3)Neglect shall mean the failure to provide timely, consistent, safe, adequate and appropriate services, treatment and/or care to a resident of an adult care facility while the resident is under the supervision of the facility, including but not limited to: personal care, nutrition, medication, therapies, sanitary clothing and surroundings, and activities of daily living. Neglect shall, in addition, include those actions incorporated within the definition of neglect set forth in section 488 of the Social Services Law.

(4)Misappropriation of property shall mean the theft, unauthorized use or removal, embezzlement or intentional destruction of the resident's personal property, including but not limited to money, clothing, furniture, appliances, jewelry, works of art and such other possessions and articles belonging to the resident, regardless of monetary value.

(5)Reasonable cause shall mean that, upon review of the circumstances, there is sufficient evidence for a person to believe that physical abuse, mistreatment, neglect or misappropriation of resident property has occurred.

(6)Reportable incident shall include abuse, mistreatment, neglect, misappropriation of property, and significant incident as defined in this Part.

(7)Justice Center shall mean the Justice Center for the Protection of People with Special Needs, as established pursuant to chapter 501 of the Laws of 2012.

(8)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:

(i) conduct between persons receiving services, or between such persons and third parties other than a custodian, that would constitute abuse if committed by a custodian; or

(ii) 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 (13) 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 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 any use of a restraint; or

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

(9)Custodian means a director, operator, employee or volunteer of a facility or provider agency as defined in section 488 (4) of the Social Services Law; 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.

(10)Department shall mean the New York State Department of Health.

(11)Facility subject to the Justice Center shall mean enriched housing programs having a capacity of 80 or more beds, and in which at least 25 percent of the residents are persons with serious mental illness as defined by section 1.03 (52) of the Mental Hygiene Law, but not including an enriched housing program which is authorized to operate 55 percent or more of its total licensed capacity of beds as assisted living program beds.

(12)Psychological abuse shall mean any verbal or nonverbal conduct that is intended to cause a patient emotional distress.

(i) Examples include, but are not limited to, teasing, taunting, name calling, threats, display of a weapon or other object that could reasonably be perceived by the patient as a means of infliction of pain or injury, insulting or coarse language or gestures directed toward a patient which subjects the patient to humiliation or degradation, violation of patient rights or misuse of authority.

(ii) In order for a case of psychological abuse to be substantiated after it has been reported to the Justice Center, the conduct must intentionally or recklessly cause, or be likely to cause, 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. Psychological abuse must be reported to the Justice Center, and will be considered to constitute a reportable incident, whenever there are reasonable grounds to believe it has occurred, even if it has not yet been supported by a clinical assessment.

(13)Unlawful use or administration of a controlled substance shall mean 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, and administration inconsistent with the requirements of section 487.7 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 488.2

Amended New York State Register February 10, 2016/Volume XXXVIII, Issue 06, eff. 2/10/2016