What definitions are important to know? |
People in Residential Health Care Facilities
- “Caretaker” means a person appointed to act as a fiduciary responsible to the court which appoints him for the conserving and preserving of the rights and property of the operator of a residential health care facility, while also preserving and providing for the rights of the patients in such facility to care appropriate to their needs in a clean and wholesome environment in accordance with applicable federal and state laws and regulations.
- “Hospital” means a facility or institution engaged principally in providing services by or under the supervision of a physician or, in the case of a dental clinic or dental dispensary, of a dentist, or, in the case of a midwifery birth center, of a midwife, for the prevention, diagnosis or treatment of human disease, pain, injury, deformity or physical condition, including, but not limited to, a general hospital, public health center, diagnostic center, treatment center, a rural emergency hospital under 42 USC 1395x(kkk), or successor provisions, dental clinic, dental dispensary, rehabilitation center other than a facility used solely for vocational rehabilitation, nursing home, tuberculosis hospital, chronic disease hospital, maternity hospital, midwifery birth center, lying-in-asylum, out-patient department, out-patient lodge, dispensary and a laboratory or central service facility serving one or more such institutions, but the term hospital shall not include an institution, sanitarium or other facility engaged principally in providing services for the prevention, diagnosis or treatment of mental disability and which is subject to the powers of visitation, examination, inspection and investigation of the department of mental hygiene except for those distinct parts of such a facility which provide hospital service.
- “Nursing home” means a facility providing therein nursing care to sick, invalid, infirm, disabled or convalescent persons in addition to lodging and board or health-related service, or any combination of the foregoing, and in addition thereto, providing nursing care and health-related service, or either of them, to persons who are not occupants of the facility.
- “Provider” means an individual or entity, whether for profit or nonprofit, whose primary purpose is to provide professional health care services.
- “Residential health care facility” means a nursing home or a facility providing health-related service.
Elder Law
- “Abuse and maltreatment” shall mean any of the following:
(i)“Physical abuse,” which means the non-accidental use of force that results in bodily injury, pain or impairment, including but not limited to, being slapped, burned, cut, bruised or improperly physically restrained.
(ii) “Sexual abuse,” which means non-consensual sexual contact of any kind, including but not limited to, forcing sexual contact or forcing sex with a third party.
(iii) “Emotional abuse,” which means willful infliction of mental or emotional anguish by threat, humiliation, intimidation or other abusive conduct, including but not limited to, frightening or isolating an adult.
(iv) “Active neglect,” which means willful failure by the caregiver to fulfill the care-taking functions and responsibilities assumed by the caregiver, including but not limited to, abandonment, willful deprivation of food, water, heat, clean clothing and bedding, eyeglasses or dentures, or health related services.
(v) “Passive neglect,” which means non-willful failure of a caregiver to fulfill care-taking functions and responsibilities assumed by the caregiver, including but not limited to, abandonment or denial of food or health related services because of inadequate caregiver knowledge, infirmity, or disputing the value of prescribed services.
(vi) “Financial exploitation,” which means improper use of an adult's funds, property or resources by another individual, including but not limited to, fraud, false pretenses, embezzlement, conspiracy, forgery, falsifying records, coerced property transfers or denial of access to assets.
- “Self-neglect” means an adult's inability, due to physical and/or mental impairments to perform tasks essential to caring for oneself, including but not limited to, providing essential food, clothing, shelter and medical care; obtaining goods and services necessary to maintain physical health, mental health, emotional well-being and general safety; or managing financial affairs.
- “Older adult” shall mean an individual aged sixty years of age or older.
- “Director” shall mean the director of the office for the aging.
Vulnerable Persons
- “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.
- “Deliberate inappropriate use of restraints” means 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. 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.
- “Mandated reporter” shall mean a custodian or a human services professional, but shall not include a service recipient.
- “Neglect” means any action, inaction or lack or attention that breaches a custodian’s duty and that results in or is likely to result in physical injury or serious 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 result in conduct between persons receiving services that would constitute abuse 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.
- “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.
- “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.
- “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.
- “Reportable incident” shall mean the following conduct that a mandated reporter is required to report to the vulnerable persons' central register: physical abuse; sexual abuse; psychological abuse; deliberate inappropriate use of restraints; use of aversive conditioning; obstruction of reports of reportable incidents; unlawful use or administration of a controlled substance; neglect; or a significant incident.
- “Sexual abuse” means any conduct by a custodian that subjects a person receiving services to any offense defined in article 130 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 230 or 263 of the penal law. 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.
- “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.
- “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, 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.
- “Use of aversive conditioning” means 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.
- “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.
|
Anything else I should know? |
- Any person who in good faith makes a report of a person receiving care or services in a residential health care facility shall have immunity from any civil or criminal liability for having made such report. Good faith is presumed in any civil or criminal proceeding.
- No residential health care facility or officer or employee thereof shall discharge or in any manner discriminate or retaliate against any person in any residential health care facility, or any relative, or sponsor thereof, or against any employee of the facility, or against any other person because such person, relative, legal representative, sponsor or employee has made, or is about to make, a report pursuant to this section, or has testified, or is about to testify, in any proceeding relating to abuse, mistreatment, neglect or misappropriation of property. The supreme court may grant injunctive relief to any person subject to such retaliation or discrimination.
- No medical or other public or private institution, state agency, school, facility or provider agency or its vendors or contractors shall take any retaliatory personnel action against any employee, agent, vendor, or contractor because such a person believed or had reasonable cause to suspect that a vulnerable person was subjected to an incident that was subject to mandatory reporting and who thereafter makes a report or who cooperates with any investigation of a reportable incident. In the event any such retaliation occurs, a court may grant injunctive relief to any person subjected to such retaliation.
- Any licensed person who commits an act of abuse, mistreatment, neglect or misappropriation of property of a person receiving care or services in a residential health care facility or any licensed person required to report who fails to do so shall be guilty of unprofessional conduct in the practice of his or her profession.
- Any person who in good faith believes that a person eighteen years of age or older may be an endangered adult or in need of protective or other services, pursuant to this article, and who, based on such belief either (a) reports or refers such person to the department, office for the aging, or any local social services district office or designated area agency on aging, law enforcement agency, or any other person, agency or organization that such person, in good faith, believes will take appropriate action; or (b) testifies in any judicial or administrative proceeding arising from such report or referral, shall have immunity from any civil liability that might otherwise result by reason of the act of making such report or referral or of giving of such testimony.
- In addition to the information above, New York has laws which cover vulnerable adults generally, regardless of an adult’s status as elderly or disabled. Certain information regarding vulnerable adults has been included above. Please see the statutory citation category for more information.
|
