SUMMARY OF CHANGES TO DEFINITIONS OF ABUSED CHILD AND NEGLECTED CHILD IN RESIDENTIAL CARE
(Available in Word Format)
The definitions of abuse and neglect pertaining to children in residential care were moved from Social Services Law (SSL) § 412 to the new SSL § 412-a and revised substantially. The new definitions follow.
An "abused child in residential care" is one who is subjected to the following acts, regardless of whether the child is injured:
Note: For all of the above actions, the statute presumes that such actions create risk of injury and classifies these actions as abuse unless the action is accidental or is done as an emergency physical intervention to protect the safety of the child or another person.
Or, an abused child in residential care is one who has had inflicted upon the child a reasonably foreseeable injury that causes death or creates a substantial risk of:
Or, is subjected to a reasonably foreseeable and substantial risk of injury, by other than accidental means, which would be likely to cause:
Or, is the victim of sexual abuse (including sex offenses, use of a child for purposes of prostitution, use of a child for a sexual performance, and incest). However, the corroboration requirements of the Penal Law and the age requirements or age based elements of any such crime do not apply to this definition. ***No injury is needed for an allegation of sex abuse***
A "neglected child in residential care" is a child who is impaired physically, mentally or emotionally or is at substantial risk of impairment because of failure to receive:
A neglected child in residential care can also mean a child who 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 a minor injury, by other than accidental means, where such injury or risk of injury was reasonably foreseeable.
A neglected child in residential care can also mean a child who is inflicted with a physical, mental or emotional injury, excluding a minor injury, by other than accidental means, or is subjected to the substantial risk of a physical, mental or emotional injury, excluding a minor injury, by other than accidental means, as a result of a failure to implement an agreed upon plan of prevention and remediation.
A neglected child in residential care can also mean a child who 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.
"Physical injury or impairment" and "impairment of physical condition" mean any confirmed harm, hurt or damage resulting in a significant worsening or diminution of a child's physical condition.
"Mental or emotional injury or impairment" and "impairment of mental or emotional condition" will be defined to 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.
"Residential care" now includes inpatient or residential settings certified by the Office of Alcoholism and Substance Abuse Services (OASAS) and designated as serving youth. This adds OASAS residential facilities serving youth to the jurisdiction of Institutional Abuse and Neglect (IAB). IAB investigations at OASAS facilities will be the responsibility of the Commission on Quality of Care and Advocacy for Persons with Disabilities (CQCAPD), except for any stand-alone residential programs certified by OASAS on the same premises as a foster care facility licensed by OCFS, which will be the responsibility of OCFS IAB.
To determine if a report can be indicated for abuse or neglect of a child in residential care, IAB staff will be looking for some credible evidence that a specific custodian is responsible (in whole or in part) for abuse or neglect.
For sex abuse cases, the question is whether the subject of the report committed, promoted or knowingly permitted sex abuse.
For cases in which a child was subjected to one of acts listed on page one under item 1, the question is whether the subject of the report committed the action at issue.
For cases involving the intentional administration of a prescription or non-prescription drug, the question is whether the subject of the report intentionally administered drug to the child.
For all other cases, the question is whether the subject of the report caused the injury or impairment of the child or the substantial risk of injury or impairment by:
Responsibilities of OCFS IAB
Within 60 days of receiving a report of abuse or neglect of a child in residential care, OCFS must make the following determinations:
Note: The list of determinations under the new law addresses reports that under existing law would be indicated for abuse or neglect of a child in residential care and those cases where the child would be found to be an institutionally neglected child. Cases that under present law would result in a finding that the child was institutionally neglected will be addressed under item (d) above as statutory and/or regulatory violations.
If OCFS determines that a report is indicated (or, it appears a crime was committed against a child, or there was a violation of the statutory, regulatory or other licensing requirements relative to the care and treatment of individuals) then OCFS must:
And, the Facility and Licensing State Agency must:
School-age child care programs: The definition of "subject of the report" in SSL § 412 is clarified to specifically include a director or operator of, or employee or volunteer in, a school-age child care program who allegedly caused or allowed injury, abuse or maltreatment of a child. Workers in school-age child care programs are also specifically included in the list of mandated reporters of suspected child abuse and maltreatment in SSL § 413.
The provisions of the new law that change the IAB definitions and procedures take effect 180 days after enactment, which is January 17, 2009.
Please note also that, for purposes of transition between the current law and the new law, the effective date will apply to the date of actions that may (or may not) constitute IAB. If a report comes in on or after January 17, 2009 that involves an incident or incidents that occurred before January 17, 2009, the current definitions of abuse and neglect of children in residential care will apply. The new definitions of abuse and neglect of children in residential care will apply only to incidents that occur on or after January17, 2009.