Bill Text: NY S02912 | 2019-2020 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Establishes the lesbian, gay, bisexual, and transgender long-term care facility residents' bill of rights.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2019-05-10 - PRINT NUMBER 2912A [S02912 Detail]

Download: New_York-2019-S02912-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          2912
                               2019-2020 Regular Sessions
                    IN SENATE
                                    January 30, 2019
                                       ___________
        Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
          printed to be committed to the Committee on Aging
        AN ACT to amend the elder law, in relation to establishing the  lesbian,
          gay, bisexual, and transgender long-term care facility residents' bill
          of rights
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. The elder law is amended by adding a new article 4 to  read
     2  as follows:
     3                                   ARTICLE 4
     4        LESBIAN, GAY, BISEXUAL, AND TRANSGENDER LONG-TERM CARE FACILITY
     5                          RESIDENTS' BILL OF RIGHTS
     6  Section 263. Definitions.
     7          264. Unlawful actions.
     8          265. Recordkeeping.
     9          266. Protection of personally identifiable information.
    10          267. Resident privacy.
    11          268. Training.
    12          269. Application.
    13          270. Violations.
    14    § 263. Definitions. For the purposes of this article:
    15    1."Gender  identity  or  expression"  shall  mean a person's actual or
    16  perceived gender-related identity, appearance, behavior, expression,  or
    17  other  gender-related  characteristic  regardless of the sex assigned to
    18  that person at birth, including, but not limited to, the status of being
    19  transgender.
    20    2. "Gender-nonconforming" shall mean a person whose gender  expression
    21  does  not  conform  to  stereotypical expectations of how a man or woman
    22  should appear or act.
    23    3. "LGBT" shall mean lesbian, gay, bisexual, or transgender.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01537-01-9

        S. 2912                             2
     1    4. "Long-term care facilities" or "facilities" shall mean  residential
     2  health  care facilities as defined in subdivision three of section twen-
     3  ty-eight hundred one of the public health law, adult care facilities  as
     4  defined  in subdivision twenty-one of section two of the social services
     5  law,  and  assisted living residences, as defined in article forty-six-B
     6  of the public health law, or any facilities which hold themselves out or
     7  advertise themselves as providing assisted living services and which are
     8  required to be licensed or certified under the social  services  law  or
     9  the public health law.
    10    5.  "Long-term care facility staff" or "facility staff" shall mean all
    11  individuals employed by or contracted directly with the facility.
    12    6. "Resident" shall mean a resident or patient  of  a  long-term  care
    13  facility.
    14    7.  "Transition"  shall  mean  to  undergo a process by which a person
    15  changes physical sex characteristics or gender expression to  match  the
    16  person's  inner sense of being male or female. This process may include,
    17  among other things, a name change, a change in preferred pronouns, and a
    18  change in social gender expression, as indicated by hairstyle, clothing,
    19  and restroom use. Transition may or may  not  include  hormone  use  and
    20  surgery.
    21    §  264.  Unlawful actions. 1. Except as provided in subdivision two of
    22  this section, it shall be unlawful for  a  long-term  care  facility  or
    23  facility  staff to take any of the following actions wholly or partially
    24  on the basis of a  person's  actual  or  perceived  sexual  orientation,
    25  gender  identity  or  expression,  or human immunodeficiency virus (HIV)
    26  status:
    27    (a) deny admission to a long-term care facility, transfer or refuse to
    28  transfer a resident  within  a  facility  or  to  another  facility,  or
    29  discharge or evict a resident from a facility;
    30    (b) deny a request by residents to share a room;
    31    (c)  where  rooms  are  assigned  by gender, assigning, reassigning or
    32  refusing to assign a room  to  a  transgender  resident  other  than  in
    33  accordance  with  the  transgender resident's gender identity, unless at
    34  the transgender resident's request;
    35    (d) prohibit a resident from using, or harass a resident who seeks  to
    36  use  or  does  use,  a  restroom  available to other persons of the same
    37  gender identity, regardless or whether the resident is making  a  gender
    38  transition  or appears to be gender-nonconforming.  Harassment includes,
    39  but is not limited to, requiring a resident to show  identity  documents
    40  in  order  to  gain entrance to a restroom available to other persons of
    41  the same gender identity;
    42    (e) willfully and repeatedly fail to use a resident's  preferred  name
    43  or  pronouns  after  being  clearly  informed  of  the preferred name or
    44  pronouns, even if the resident is not present;
    45    (f) deny a resident the right to  wear  or  be  dressed  in  clothing,
    46  accessories, or cosmetics that are permitted for any other resident;
    47    (g)  restrict  a resident's right to associate with other residents or
    48  with visitors, including  the  right  to  consensual  sexual  relations,
    49  unless  the  restriction  is  uniformly  applied  to  all residents in a
    50  nondiscriminatory manner; and
    51    (h) deny or restrict medical or nonmedical care that is appropriate to
    52  a resident's organ and bodily needs, or provide  medical  or  nonmedical
    53  care in a manner that, to a similarly situated reasonable person, unduly
    54  demeans the resident's dignity or causes avoidable discomfort.

        S. 2912                             3
     1    2.  The  provisions of this section shall not apply to the extent that
     2  they are incompatible with any professionally reasonable clinical  judg-
     3  ment that is based on articulable facts of clinical significance.
     4    3. Each facility shall post the following notice alongside its current
     5  nondiscrimination  policy  in all places and on all materials where that
     6  policy is posted:  "(NAME OF FACILITY) DOES NOT  DISCRIMINATE  AND  DOES
     7  NOT  PERMIT  DISCRIMINATION,  INCLUDING,  BUT  NOT LIMITED TO, BULLYING,
     8  ABUSE, HARASSMENT, OR DIFFERENTIAL TREATMENT ON THE BASIS OF  ACTUAL  OR
     9  PERCEIVED  SEXUAL  ORIENTATION,  GENDER  IDENTITY  OR EXPRESSION, OR HIV
    10  STATUS, OR BASED ON ASSOCIATION WITH ANOTHER INDIVIDUAL  ON  ACCOUNT  OF
    11  THAT INDIVIDUAL'S ACTUAL OR PERCEIVED SEXUAL ORIENTATION, GENDER IDENTI-
    12  TY  OR  EXPRESSION,  OR  HIV  STATUS.  YOU MAY FILE A COMPLAINT WITH THE
    13  OFFICE OF THE NEW YORK STATE LONG-TERM CARE OMBUDSMAN  PROGRAM  (PROVIDE
    14  CONTACT  INFORMATION) IF YOU BELIEVE THAT YOU HAVE EXPERIENCED THIS KIND
    15  OF DISCRIMINATION."
    16    § 265. Recordkeeping. 1.   A  facility  shall  employ  procedures  for
    17  recordkeeping,  including,  but not limited to, records generated at the
    18  time of admission, that include the gender identity,  correct  name,  as
    19  indicated by the resident, and pronoun of each resident, as indicated by
    20  the resident and such records will be kept up to date.
    21    2.  The  New  York state long-term care ombudsman program shall employ
    22  procedures for recordkeeping of complaints filed from residents of long-
    23  term care facilities pursuant to this article,  and  shall  establish  a
    24  method  of  publicly  reporting these complaints while maintaining resi-
    25  dents' individual privacy.
    26    § 266. Protection of personally  identifiable  information.  Long-term
    27  care   facilities  shall  protect  personally  identifiable  information
    28  regarding residents' sexual orientation, whether a resident is transgen-
    29  der, a resident's transition history, and HIV status  from  unauthorized
    30  disclosure,  as required by the federal Health Insurance Portability and
    31  Accountability Act of 1996 (42 U.S.C. Sec. 300gg),  if  applicable,  and
    32  any other applicable provision of federal or state law. A facility shall
    33  take  any steps reasonably necessary to minimize the likelihood of inad-
    34  vertent or incidental disclosure of that information to other residents,
    35  visitors, or facility staff, except to the minimum extent necessary  for
    36  facility staff to perform their duties.
    37    §  267.  Resident  privacy. Long-term care facility staff not directly
    38  involved in providing direct care to  a  resident,  including,  but  not
    39  limited to, a transgender or gender-nonconforming resident, shall not be
    40  present during physical examination or the provision of personal care to
    41  that  resident  if  the resident is partially or fully unclothed without
    42  the express permission of  that  resident,  or  the  resident's  legally
    43  authorized  representative  or  responsible  party. A facility shall use
    44  doors, curtains, screens, or other effective visual barriers to  provide
    45  bodily  privacy for all residents, including, but not limited to, trans-
    46  gender or gender-nonconforming residents, whenever they are partially or
    47  fully unclothed. In addition, all residents, including, but not  limited
    48  to,  LGBT  or  gender-nonconforming  residents, shall be informed of and
    49  have the right to refuse to be examined, observed,  or  treated  by  any
    50  facility  staff when the primary purpose is educational or informational
    51  rather than therapeutic, or for resident appraisal or  reappraisal,  and
    52  that  refusal  shall  not diminish the resident's access to care for the
    53  primary purpose of diagnosis or treatment.
    54    § 268. Training. 1.  In addition to other training required by federal
    55  or state laws, long-term care facilities shall provide existing  employ-
    56  ees  and  new hires access to the online learning tool "Building Respect

        S. 2912                             4
     1  for LGBT Older Adults," which is  available  on  the  National  Resource
     2  Center on LGBT Aging internet website (www.lgbtagingcenter.org).
     3    2.  At  least  once  every  two years, a long-term care facility shall
     4  ensure that each facility staff member who works directly with residents
     5  receives training on cultural competency focusing on patients who  iden-
     6  tify  as  LGBT.  The  instruction  required  by  subdivision one of this
     7  section shall teach attitudes, knowledge, and skills that enable facili-
     8  ty staff to care effectively for residents who identify as  LGBT,  which
     9  may include:
    10    (a) understanding and applying relevant data concerning health dispar-
    11  ities  and  risk factors for patients seeking clinical care who identify
    12  as LGBT;
    13    (b) legal requirements pertaining to patients who identify as LGBT;
    14    (c) best practices for collection, storage, use,  and  confidentiality
    15  of information regarding sexual orientation and gender identity;
    16    (d)  best  practices for training support staff regarding treatment of
    17  patients who identify as LGBT and their families; and
    18    (e) understanding the intersections between systems of oppression  and
    19  discrimination,  recognizing that those who identify as LGBT may experi-
    20  ence these systems in varying degrees of intensity, addressing  underly-
    21  ing cultural biases, and providing nondiscriminatory care.
    22    3.  Facility  staff  required  to  receive training under this section
    23  shall receive the training within six months of hire unless  the  person
    24  provides  proof  of having received comparable training within the prior
    25  two years that the facility determines complies with this section.    If
    26  the  facility  accepts the person's proof of prior training, a record of
    27  the content of the prior training sufficient to determine its compliance
    28  with this section must be kept on site at the facility.
    29    4. The department of health, in conjunction with the  office  for  the
    30  aging, shall develop and implement regulations for the conduct of train-
    31  ing as required by this section.
    32    §  269.  Application.  Nothing  in this article should be construed to
    33  impede existing programs, benefits, or protections for LGBT residents at
    34  long-term care facilities.
    35    § 270. Violations. 1.  A violation of the provisions of  this  article
    36  shall  be  treated  as  a  violation  under section twelve of the public
    37  health law.
    38    2. Any facility that intentionally  violates  any  provision  of  this
    39  article  shall  be liable, in a civil action or proceeding maintained by
    40  one of more residents of the long-term  care  facility,  for  injunctive
    41  relief, damages, or any other appropriate relief in law or equity. If it
    42  shall appear to the satisfaction of the court or justice that the facil-
    43  ity  has,  in  fact, violated a provision of this article, an injunction
    44  may be issued by such court or justice, enjoining  and  restraining  any
    45  further  violation,  without  requiring  proof  that any resident of the
    46  long-term care facility has, in fact, been injured or damaged thereby.
    47    § 2. This act shall take effect on the thirtieth day  after  it  shall
    48  have  become  a law.   Effective immediately, the addition, amendment or
    49  repeal of any rule or regulation necessary  for  the  implementation  of
    50  this  act  on  its effective date are authorized to be made on or before
    51  such date.
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