(a) Reportable incidents are events or situations that meet the definitions in subdivision (b) of this section and occur under the auspices (see glossary, section 624.20 of this Part) of an agency.

1. (1) Physical abuse. Conduct by a custodian (see glossary, section 624.20 of this Part) intentionally (see glossary, section 624.20 of this Part) or recklessly (see glossary, section 624.20 of this Part) causing, by physical contact, physical injury (see glossary, section 624.20 of this Part) or serious or protracted impairment of the physical, mental, or emotional condition of the individual receiving services, 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. Physical abuse does not include reasonable emergency interventions necessary to protect the safety of any party.
2. (2) Sexual abuse. 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 person receiving services to engage in any act described in article 230 or 263 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 an agency is not considered a custodian if he or she has sexual contact with another individual receiving services who is a consenting adult who has consented to such contact.

3. (3) Psychological abuse. Any verbal or nonverbal conduct that may cause significant emotional distress to an individual receiving services.

   1. (i) Examples include, but are not limited to taunts, derogatory comments or ridicule, intimidation, threats, or the display of a weapon or other object that could reasonably be perceived by an individual receiving services as a means for infliction of pain or injury, in a manner that constitutes a threat of physical pain or injury.
   2. (ii) In order for a case of psychological abuse to be substantiated after it has been reported, the conduct must be shown to intentionally or recklessly cause, or be likely to cause, a substantial diminution of the emotional, social, or behavioral development or condition of the individual receiving services. Evidence of such an effect must be supported by a clinical assessment performed by a physician, psychologist, psychiatric nurse practitioner, licensed clinical or master social worker, or licensed mental health counselor.
4. (4) Deliberate inappropriate use of restraints. 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 an individual’s plan of services (e.g., individualized service plan (ISP) or a habilitation plan), or behavior support 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 party. For purposes of this paragraph, a restraint includes 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.
5. (5) Use of aversive conditioning. 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. Aversive conditioning may include, but is not limited to, the use of physical stimuli such as noxious odors, noxious tastes, blindfolds, and the withholding of meals and the provision of substitute foods in an unpalatable form. The use of aversive conditioning is prohibited by OPWDD.
6. (6) Obstruction of reports of reportable incidents. 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 an individual receiving services; actively persuading a custodian or other mandated reporter (as defined in section 488 of the Social Services Law) from making a report of a reportable incident to the statewide vulnerable persons' central register (VPCR) or OPWDD 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 OPWDD regulations, policies, or procedures; or, for a custodian, failing to report a reportable incident upon discovery.
7. (7) Unlawful use or administration of a controlled substance. 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, 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 33 of the Public Health Law, at the workplace or while on duty.

8. (8) 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 service recipient. Neglect includes, but is not limited to:

   1. (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 (1) through (7) of this subdivision if committed by a custodian;
   2. (ii) failure to provide adequate food, clothing, shelter, or medical, dental, optometric, or surgical care, consistent with Parts 633, 635, and 686, of this Title (and 42 CFR part 483, applicable to Intermediate Care Facilities), and provided that the 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 parties; or
   3. (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 65 of the Education Law and/or the individual's individualized education program.

9. (9) Significant incident. 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 includes but is not limited to:

   1. (i) the following types of incidents prior to January 1, 2016:

      1. (a) conduct between persons receiving services that would constitute abuse as described in paragraphs (1) through (7) of this subdivision if committed by a custodian, except sexual activity involving adults who are capable of consenting and consent to the activity; or

      2. (b) conduct on the part of a custodian, that is inconsistent with the individual’s plan of services, generally accepted treatment practices, and/or applicable Federal or State laws, regulations or policies, and that impairs or creates a reasonably foreseeable potential to impair the health, safety, or welfare of an individual receiving services, including:

         1. (1) seclusion. The placement of an individual receiving services in a room or area from which he or she cannot, or perceives that he or she cannot, leave at will except when such placement is specifically permitted by section 633.16 of this Title. Unless permitted by section 633.16 of this Title, the use of seclusion is prohibited. Note:

            Note:

            Section 633.16 of this Title (Person-Centered Behavioral Intervention) identifies a form of "exclusionary time out," which prevents egress from a time out room by a custodian's direct and continuous action, and requires constant visual and auditory monitoring. Use of exclusionary time out may be included in a formal behavior support plan and implemented in accordance with the conditions and limits set forth in paragraph 633.16(j)(3) of this Title. The use of exclusionary time out in the absence of an approved behavior support plan that incorporates the use of exclusionary time-out, or a failure to implement such a plan as designed, is considered to be “seclusion” and is prohibited.

         2. (2) unauthorized use of time-out. For the purposes of this subclause only, means 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, for disciplinary purposes, or as a substitute for programming; Note:

            Note:

            For the purposes of this provision "unauthorized use of time out" includes any use of time out that is inconsistent with an individual's plan of services except as noted in subclause (1) of this clause.

         3. (3) except as provided for in paragraph (7) of this subdivision, the administration of a prescribed or over-the-counter medication, that is inconsistent with a prescription or order issued for a service recipient by a licensed, qualified health care practitioner, and that has an adverse effect on an individual receiving services. For purposes of this clause, adverse effect means the unanticipated and undesirable side effect from the administration of a particular medication which unfavorably affects the wellbeing of a person receiving services;
         4. (4) inappropriate use of restraints. 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 an individual’s plan of services (including a behavior support plan), generally accepted treatment practices, and/or applicable Federal or State Laws, regulations or policies. For the purposes of this subdivision, a restraint includes 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; and
         5. (5) other mistreatment. Other conduct on the part of a custodian, that is inconsistent with the individual’s plan of services, generally accepted treatment practices, and/or applicable Federal or State laws, regulations or policies, and that impairs or creates a reasonably foreseeable potential to impair the health, safety, or welfare of an individual receiving services, except as described in subclauses (1) through (4) of this clause;
      3. (c) missing person. The unexpected absence of an individual receiving services that based on the person's history and current condition exposes him or her to risk of injury; or
      4. (d) choking, with known risk. The partial or complete blockage of the upper airway by an inhaled or swallowed foreign body, including food, that leads to a partial or complete inability to breathe, involving an individual with a known risk for choking and a written directive addressing that risk; or
      5. (e) self-abusive behavior, with injury. A self inflicted injury to an individual receiving services that requires medical care beyond first aid.

   2. (ii) the following types of incidents on and after January 1, 2016:

      1. (a) conduct between persons receiving services that would constitute abuse as described in paragraphs (1) through (7) of this subdivision if committed by a custodian, except sexual activity involving adults who are capable of consenting and consent to the activity; or

      2. (b) conduct on the part of a custodian, that is inconsistent with the individual’s plan of services, generally accepted treatment practices, and/or applicable federal or state laws, regulations, or policies, and that impairs or creates a reasonably foreseeable potential to impair the health, safety, or welfare of an individual receiving services; including:

         1. (1) seclusion. The placement of an individual receiving services in a room or area from which he or she cannot, or perceives that he or she cannot, leave at will, except when such placement is specifically permitted by section 633.16 of this Title. Unless permitted by section 633.16 of this Title, the use of seclusion is prohibited; Note:

            Note:

            Section 633.16 of this Title (Person-Centered Behavioral Intervention) identifies a form of "exclusionary time out," which prevents egress from a time out room by a custodian's direct and continuous action, and requires constant visual and auditory monitoring. Use of exclusionary time out may be included in a formal behavior support plan and implemented in accordance with the conditions and limits set forth in paragraph 633.16(j)(3) of this Title. The use of exclusionary time out in the absence of an approved behavior support plan that incorporates the use of exclusionary time-out, or a failure to implement such a plan as designed, is considered to be “seclusion” and is prohibited.

         2. (2) unauthorized use of time-out. For the purposes of this subclause only, means 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, for disciplinary purposes, or as a substitute for programming; Note:

            Note:

            For the purposes of this provision "unauthorized use of timeout" includes any use of time out that is inconsistent with an individual's plan of services except as noted in subclause (1) of this clause.

         3. (3) except as provided for in paragraph (7) of this subdivision, the administration of a prescribed or over-the-counter medication that is inconsistent with a prescription or order issued for a service recipient by a licensed qualified health care practitioner, and that has an adverse effect on an individual receiving services. For purposes of this subclause, adverse effect means the unanticipated and undesirable side effect from the administration of a particular medication which unfavorably affects the wellbeing of a person receiving services;
         4. (4) inappropriate use of restraints. 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 an individual’s plan of services (including a behavior support plan), generally accepted treatment practices, and/or applicable Federal or State laws, regulations, or policies. For the purposes of this subdivision, a "restraint" includes 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; and
         5. (5) mistreatment. Other conduct on the part of a custodian, inconsistent with the individual’s plan of services, generally accepted treatment practices, and/or applicable Federal or State laws, regulations, or policies, and that impairs or creates a reasonably foreseeable potential to impair the health, safety, or welfare of an individual receiving services, except as described in any other provision of this subdivision;
      3. (c) missing person at risk for injury. The unexpected absence of an individual receiving services that based on the person's history and current condition exposes him or her to risk of injury;
      4. (d) unauthorized absence. The unexpected or unauthorized absence of a person after formal search procedures (see glossary, section 624.20 of this Part) have been initiated by the agency. Reasoned judgments, taking into consideration the person's habits, deficits, capabilities, health problems, etc., determine when formal search procedures need to be implemented. It is required that formal search procedures must be initiated immediately upon discovery of an absence involving a person whose absence constitutes a recognized potential danger, except as defined in clause (c) of this subparagraph, to the wellbeing of the person or others;
      5. (e) choking, with known risk. The partial or complete blockage of the upper airway by an inhaled or swallowed foreign body, including food, that leads to a partial or complete inability to breathe, involving an individual with a known risk for choking and a written directive addressing that risk;
      6. (f) choking, with no known risk. For the purposes of this paragraph, partial or complete blockage of the upper airway by an inhaled or swallowed foreign body, including food, that leads to a partial or complete inability to breathe, other than a choking, with known risk, incident (see clause [e] of this subparagraph), involving an individual with a known risk for choking and a written directive addressing that risk;
      7. (g) self-abusive behavior, with injury. A self-inflicted injury to an individual receiving services that requires medical care beyond first aid;
      8. (h) injury, with hospital admission. An injury that results in the admission of a service recipient to a hospital for treatment or observation, except as defined in clause (g) of this subparagraph;
      9. (i) theft and financial exploitation. Any suspected theft of a service recipient's personal property (including personal funds or belongings) or financial exploitation, involving a value of more than $100; theft involving a service recipient's credit, debit, or public benefit card (regardless of the amount involved); or a pattern of theft or financial exploitation involving the property of one or more individuals receiving services;
      10. (j) other significant incident. An incident that occurs under the auspices of an agency, but that does not involve conduct on the part of a custodian, and does not meet the definition of any other incident described in this subdivision, but 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.

(b) Definitions of reportable incidents.