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. LBD01537-01-9S. 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 RespectS. 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.