412-A - Special definitions relating to children in residential care.
§ 412-a. Special definitions relating to children in residential care. When used in this title in relation to allegations that a child has been abused or neglected in residential care and unless the specific context indicates otherwise: 1. "Abused child in residential care" means a "child," as defined in subdivision three of this section, in "residential care," as defined in subdivision four of this section, who: (a) is subjected to any of the following acts, regardless of whether such act results in injury, when such act is committed by a custodian of the child, is not accidental and does not constitute emergency physical intervention necessary to protect the safety of any person: (i) being thrown, shoved, kicked, burned, stricken, choked, smothered, pinched, punched, shaken, cut or bitten; (ii) the display of a weapon, or other object that could reasonably be perceived by the child as a means for the infliction of pain or injury, in a manner that constitutes a threat of physical pain or injury; (iii) the use of corporal punishment; (iv) the withholding of nutrition or hydration as punishment; or (v) the unlawful administration of any controlled substance as defined by article thirty-three of the public health law, or any alcoholic beverage, as defined by section three of the alcoholic beverage control law, to the child; or (b) is inflicted, by other than accidental means, with a reasonably foreseeable injury that causes death or creates a substantial risk of death, serious or protracted disfigurement, serious or protracted impairment of his or her physical, mental or emotional condition, or serious or protracted loss or impairment of the function of any organ; or (c) is subjected to a reasonably foreseeable and substantial risk of injury, by other than accidental means, which would be likely to cause death, serious or protracted disfigurement, serious or protracted impairment of his or her physical, mental or emotional condition, or serious or protracted loss or impairment of the function of any organ; or (d) is the victim of any offense described in article one hundred thirty of the penal law or section 255.25, 255.26 or 255.27 of the penal law; or is allowed, permitted or encouraged to engage in any act described in article two hundred thirty of the penal law; or is allowed or used to engage in acts or conduct described in article two hundred sixty-three of the penal law; provided, however, that (i) the corroboration requirements in the penal law and (ii) the age requirements for the application of articles one hundred thirty, two hundred thirty and two hundred sixty-three of the penal law and any age based element of any crime described therein shall not apply to the provisions of this title. 2. "Neglected child in residential care" means a "child," as defined in subdivision three of this section, in "residential care," as defined in subdivision four of this section, who: (a) experiences an impairment of his or her physical, mental or emotional condition or is subjected to a substantial risk of such impairment because he or she has not received: (i) 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 residential facility or program, provided that the facility 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;(ii) access to educational instruction in accordance with the provisions of part one of article sixty-five of the education law; or (iii) proper supervision or guardianship, consistent with the rules or regulations promulgated by the state agency operating, certifying or supervising the residential facility or program; or (b) is inflicted with a physical, mental or emotional injury, excluding a minor injury, by other than accidental means, or is subjected to the risk of a physical, mental or emotional injury, excluding minor injury, by other than accidental means, where such injury or risk of injury was reasonably foreseeable; or (c) is inflicted with a physical, mental or emotional injury, excluding minor injury, by other than accidental means, or is subjected to the substantial risk of a physical, mental or emotional injury, excluding minor injury, by other than accidental means, as a result of a failure to implement an agreed upon plan of prevention and remediation pursuant to this chapter, the mental hygiene law, the executive law or the education law; or (d) is subjected to the intentional administration of any prescription or non-prescription drug other than in substantial compliance with a prescription or order issued for the child by a licensed, qualified health care practitioner. 3. "Child" or "children," for purposes of this section, means an individual or individuals under eighteen years of age; or a child with a disability, as defined in subdivision one of section forty-four hundred one of the education law, who is eighteen years of age or older and is in residential care in a school or facility described in paragraph (c), (d), (e) or (f) of subdivision four of this section; or a pupil with a handicapping condition in residential care in` such a school or facility who is twenty-one years of age and is entitled, pursuant to subdivision five of section forty-four hundred two of the education law, to remain in such school or facility until either the termination of the school year or the termination of the summer program, as applicable. 4. "Residential care" means: (a) care provided to a child who has been placed by the family court with a social services official or the office of children and family services, or whose care and custody or custody and guardianship has been transferred or committed to, a social services official, another authorized agency, or the office of children and family services and such care is provided in an agency operated boarding home, a group home or child care institution; (b) care provided to a child in a facility or program operated or certified by the office of children and family services pursuant to article nineteen-G or nineteen-H of the executive law, excluding foster family care; (c) care provided to a child in the New York state school for the blind or the New York state school for the deaf, pursuant to the provisions of articles eighty-seven and eighty-eight of the education law; (d) care provided to a child in a private residential school which is within the state and which has been approved by the commissioner of education for special education services or programs; (e) care provided in institutions for the instruction of the deaf and the blind which have a residential component, and which are subject to the visitation of the commissioner of education pursuant to article eighty-five of the education law; (f) care provided through a residential placement of a child with a special act school district listed in chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, as amended;(g) care provided to a child in a residential facility licensed or operated by the office of mental health, excluding family care homes; (h) care provided to a child in a residential facility licensed or operated by the office of mental retardation and developmental disabilities, excluding family care homes; (i) care provided to a child in an inpatient or residential setting certified by the office of alcoholism and substance abuse services, which has been specifically designated by such office as serving youth; or (j) care provided to a child by an authorized agency licensed to provide both care enumerated in paragraph (a) of this subdivision and care defined in paragraph (g), (h) or (i) of this subdivision. 5. "Custodian" means a director, operator, employee or volunteer of a residential care facility or program; or a consultant or an employee or volunteer of a corporation, partnership, organization or governmental entity which provides goods or services to a residential care facility pursuant to a contract or other arrangement that permits such person to have regular and substantial contact with children in residential care. 6. "Physical injury or impairment" and "impairment of physical condition," as used in subdivisions one and two of this section, mean any confirmed harm, hurt or damage resulting in a significant worsening or diminution of a child's physical condition. 7. "Mental or emotional injury or impairment" and "impairment of mental or emotional condition," as used in subdivisions one and two of this section, mean a substantial diminution of a child's psychological or intellectual functioning which is determined by a physician, psychologist, psychiatric nurse practitioner, licensed clinical or master social worker, or licensed mental health counselor. 8. "Subject of the report of an abused or neglected child in residential care" means any custodian of a child in residential care who is reported to the statewide central register of child abuse and maltreatment for the alleged abuse or neglect of such child, as those terms are defined in subdivisions one and two of this section. 9. "Other persons named in a report of an abused or neglected child in residential care" means and is limited to the following persons who are named in a report to the statewide central register of child abuse and maltreatment other than the subject of the report: the child in residential care who is reported to the statewide central register of child abuse and maltreatment, and such child's parent, guardian, custodian or other person legally responsible for the child who has not been named in the report as being allegedly responsible, in whole or in part, for the abuse or neglect of the child, as those terms are defined by subdivisions one and two of this section.