2012 New York Consolidated Laws
SOS - Social Services
Article 6 - CHILDREN
Title 6 - (411 - 428) CHILD PROTECTIVE SERVICES
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.
    * NB Repealed June 30, 2013