S T A T E O F N E W Y O R K
________________________________________________________________________
8252
2017-2018 Regular Sessions
I N A S S E M B L Y
June 2, 2017
___________
Introduced by M. of A. McDONALD -- read once and referred to the Commit-
tee on Mental Health
AN ACT to amend the social services law, in relation to the definitions
of neglect and significant incident for the purposes of reportable
incidents
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraphs (h) and (i) of subdivision 1 of section 488 of
the social services law, as added by section 1 of part B of chapter 501
of the laws of 2012, are amended to read as follows:
(h) "Neglect," which shall mean any action, inaction or lack of atten-
tion that breaches a custodian's duty and that results in or [is likely
to result in] PLACES IN IMMINENT RISK OF 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 super-
vision 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 surgi-
cal 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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11970-01-7
A. 8252 2
(i) "Significant incident" shall mean an incident, other than an inci-
dent of abuse or neglect, that because of its severity or the sensitiv-
ity 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 educa-
tional 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 proce-
dure 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 medica-
tion, 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 unde-
sirable 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 poli-
cies. 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 over-
sight agency, pursuant to guidelines or standards established by the
executive director.
§ 2. This act shall take effect immediately.