(1) 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 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.

(2) 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 article 230 or 263 of the Penal Law. For the purposes of this definition of sexual abuse 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.

(3) 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. Clinical assessment is necessary for substantiation after investigation, but not for reporting a reasonable suspicion.

(4) 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. 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) 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 Office of Children and Family Services. 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.

(6) Obstruction of reports of reportable incidents means 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 a service recipient; actively persuading a mandated reporter to make a false statement or intentionally withholding material information during an investigation into such a report; or intentional failure of a supervisor or manager to act upon such a report in accordance with governing regulations, policies or procedures; or, for a mandated reporter who is a custodian failing to report a reportable incident upon discovery.

(7) 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 33 of the Public Health Law, without a prescription; or other medication not approved for any use by the federal food and drug administration. 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) Neglect means 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 shall include, but is not limited to: failure to provide proper supervision, including lack of proper supervision that results in conduct between persons receiving services that would constitute physical abuse, sexual abuse, psychological abuse, deliberate or inappropriate use of restraints, use of aversive conditioning, obstruction or reports of reportable incidents, or unlawful use or administration of a controlled substance, as defined above; failure to provide adequate food, clothing, shelter, medical, dental, optometric or surgical care, consistent with the rules and regulations governing the same, 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 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 this part and of article 65 of the Education Law and/or the individual’s individualized educational program.

(9) Significant incident means 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 shall include but not be limited to: