Bill Text: NY A11300 | 2017-2018 | General Assembly | Introduced


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 - Dead) 2018-08-15 - referred to aging [A11300 Detail]

Download: New_York-2017-A11300-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          11300
                   IN ASSEMBLY
                                     August 15, 2018
                                       ___________
        Introduced  by COMMITTEE ON RULES -- (at request of M. of A. Simotas) --
          read once and referred 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.
    24    4. "Long-term care facilities" or "facilities" shall mean  residential
    25  health  care facilities as defined in subdivision three of section twen-
    26  ty-eight hundred one of the public health law, adult care facilities  as
    27  defined  in subdivision twenty-one of section two of the social services
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13518-04-8

        A. 11300                            2
     1  law, and assisted living residences, as defined in  article  forty-six-B
     2  of the public health law, or any facilities which hold themselves out or
     3  advertise themselves as providing assisted living services and which are
     4  required  to  be  licensed or certified under the social services law or
     5  the public health law.
     6    5. "Long-term care facility staff" or "facility staff" shall mean  all
     7  individuals employed by or contracted directly with the facility.
     8    6.  "Resident"  shall  mean  a resident or patient of a long-term care
     9  facility.
    10    7. "Transition" shall mean to undergo a  process  by  which  a  person
    11  changes  physical  sex characteristics or gender expression to match the
    12  person's inner sense of being male or female. This process may  include,
    13  among other things, a name change, a change in preferred pronouns, and a
    14  change in social gender expression, as indicated by hairstyle, clothing,
    15  and  restroom  use.  Transition  may  or may not include hormone use and
    16  surgery.
    17    § 264. Unlawful actions. 1. Except as provided in subdivision  two  of
    18  this  section,  it  shall  be  unlawful for a long-term care facility or
    19  facility staff to take any of the following actions wholly or  partially
    20  on  the  basis  of  a  person's  actual or perceived sexual orientation,
    21  gender identity or expression, or  human  immunodeficiency  virus  (HIV)
    22  status:
    23    (a) deny admission to a long-term care facility, transfer or refuse to
    24  transfer  a  resident  within  a  facility  or  to  another facility, or
    25  discharge or evict a resident from a facility;
    26    (b) deny a request by residents to share a room;
    27    (c) where rooms are assigned  by  gender,  assigning,  reassigning  or
    28  refusing  to  assign  a  room  to  a  transgender resident other than in
    29  accordance with the transgender resident's gender  identity,  unless  at
    30  the transgender resident's request;
    31    (d)  prohibit a resident from using, or harass a resident who seeks to
    32  use or does use, a restroom available  to  other  persons  of  the  same
    33  gender  identity,  regardless or whether the resident is making a gender
    34  transition or appears to be gender-nonconforming.  Harassment  includes,
    35  but  is  not limited to, requiring a resident to show identity documents
    36  in order to gain entrance to a restroom available to  other  persons  of
    37  the same gender identity;
    38    (e)  willfully  and repeatedly fail to use a resident's preferred name
    39  or pronouns after being  clearly  informed  of  the  preferred  name  or
    40  pronouns, even if the resident is not present;
    41    (f)  deny  a  resident  the  right  to wear or be dressed in clothing,
    42  accessories, or cosmetics that are permitted for any other resident;
    43    (g) restrict a resident's right to associate with other  residents  or
    44  with  visitors,  including  the  right  to  consensual sexual relations,
    45  unless the restriction is  uniformly  applied  to  all  residents  in  a
    46  nondiscriminatory manner; and
    47    (h) deny or restrict medical or nonmedical care that is appropriate to
    48  a  resident's  organ  and bodily needs, or provide medical or nonmedical
    49  care in a manner that, to a similarly situated reasonable person, unduly
    50  demeans the resident's dignity or causes avoidable discomfort.
    51    2. The provisions of this section shall not apply to the  extent  that
    52  they  are incompatible with any professionally reasonable clinical judg-
    53  ment that is based on articulable facts of clinical significance.
    54    3. Each facility shall post the following notice alongside its current
    55  nondiscrimination policy in all places and on all materials  where  that
    56  policy  is  posted:   "(NAME OF FACILITY) DOES NOT DISCRIMINATE AND DOES

        A. 11300                            3
     1  NOT PERMIT DISCRIMINATION, INCLUDING,  BUT  NOT  LIMITED  TO,  BULLYING,
     2  ABUSE,  HARASSMENT,  OR DIFFERENTIAL TREATMENT ON THE BASIS OF ACTUAL OR
     3  PERCEIVED SEXUAL ORIENTATION, GENDER  IDENTITY  OR  EXPRESSION,  OR  HIV
     4  STATUS,  OR  BASED  ON ASSOCIATION WITH ANOTHER INDIVIDUAL ON ACCOUNT OF
     5  THAT INDIVIDUAL'S ACTUAL OR PERCEIVED SEXUAL ORIENTATION, GENDER IDENTI-
     6  TY OR EXPRESSION, OR HIV STATUS. YOU  MAY  FILE  A  COMPLAINT  WITH  THE
     7  OFFICE  OF  THE NEW YORK STATE LONG-TERM CARE OMBUDSMAN PROGRAM (PROVIDE
     8  CONTACT INFORMATION) IF YOU BELIEVE THAT YOU HAVE EXPERIENCED THIS  KIND
     9  OF DISCRIMINATION."
    10    §  265.  Recordkeeping.  1.    A  facility shall employ procedures for
    11  recordkeeping, including, but not limited to, records generated  at  the
    12  time  of  admission,  that include the gender identity, correct name, as
    13  indicated by the resident, and pronoun of each resident, as indicated by
    14  the resident and such records will be kept up to date.
    15    2. The New York state long-term care ombudsman  program  shall  employ
    16  procedures for recordkeeping of complaints filed from residents of long-
    17  term  care  facilities  pursuant  to this article, and shall establish a
    18  method of publicly reporting these complaints  while  maintaining  resi-
    19  dents' individual privacy.
    20    §  266.  Protection  of personally identifiable information. Long-term
    21  care  facilities  shall  protect  personally  identifiable   information
    22  regarding residents' sexual orientation, whether a resident is transgen-
    23  der,  a  resident's transition history, and HIV status from unauthorized
    24  disclosure, as required by the federal Health Insurance Portability  and
    25  Accountability  Act  of  1996 (42 U.S.C. Sec. 300gg), if applicable, and
    26  any other applicable provision of federal or state law. A facility shall
    27  take any steps reasonably necessary to minimize the likelihood of  inad-
    28  vertent or incidental disclosure of that information to other residents,
    29  visitors,  or facility staff, except to the minimum extent necessary for
    30  facility staff to perform their duties.
    31    § 267. Resident privacy. Long-term care facility  staff  not  directly
    32  involved  in  providing  direct  care  to a resident, including, but not
    33  limited to, a transgender or gender-nonconforming resident, shall not be
    34  present during physical examination or the provision of personal care to
    35  that resident if the resident is partially or  fully  unclothed  without
    36  the  express  permission  of  that  resident,  or the resident's legally
    37  authorized representative or responsible party.  A  facility  shall  use
    38  doors,  curtains, screens, or other effective visual barriers to provide
    39  bodily privacy for all residents, including, but not limited to,  trans-
    40  gender or gender-nonconforming residents, whenever they are partially or
    41  fully  unclothed. In addition, all residents, including, but not limited
    42  to, LGBT or gender-nonconforming residents, shall  be  informed  of  and
    43  have  the  right  to  refuse to be examined, observed, or treated by any
    44  facility staff when the primary purpose is educational or  informational
    45  rather  than  therapeutic, or for resident appraisal or reappraisal, and
    46  that refusal shall not diminish the resident's access to  care  for  the
    47  primary purpose of diagnosis or treatment.
    48    § 268. Training. 1.  In addition to other training required by federal
    49  or  state laws, long-term care facilities shall provide existing employ-
    50  ees and new hires access to the online learning tool  "Building  Respect
    51  for  LGBT  Older  Adults,"  which  is available on the National Resource
    52  Center on LGBT Aging internet website (www.lgbtagingcenter.org).
    53    2. At least once every two years,  a  long-term  care  facility  shall
    54  ensure that each facility staff member who works directly with residents
    55  receives  training on cultural competency focusing on patients who iden-
    56  tify as LGBT. The  instruction  required  by  subdivision  one  of  this

        A. 11300                            4
     1  section shall teach attitudes, knowledge, and skills that enable facili-
     2  ty  staff  to care effectively for residents who identify as LGBT, which
     3  may include:
     4    (a) understanding and applying relevant data concerning health dispar-
     5  ities  and  risk factors for patients seeking clinical care who identify
     6  as LGBT;
     7    (b) legal requirements pertaining to patients who identify as LGBT;
     8    (c) best practices for collection, storage, use,  and  confidentiality
     9  of information regarding sexual orientation and gender identity;
    10    (d)  best  practices for training support staff regarding treatment of
    11  patients who identify as LGBT and their families; and
    12    (e) understanding the intersections between systems of oppression  and
    13  discrimination,  recognizing that those who identify as LGBT may experi-
    14  ence these systems in varying degrees of intensity, addressing  underly-
    15  ing cultural biases, and providing nondiscriminatory care.
    16    3.  Facility  staff  required  to  receive training under this section
    17  shall receive the training within six months of hire unless  the  person
    18  provides  proof  of having received comparable training within the prior
    19  two years that the facility determines complies with this section.    If
    20  the  facility  accepts the person's proof of prior training, a record of
    21  the content of the prior training sufficient to determine its compliance
    22  with this section must be kept on site at the facility.
    23    4. The department of health, in conjunction with the  office  for  the
    24  aging, shall develop and implement regulations for the conduct of train-
    25  ing as required by this section.
    26    §  269.  Application.  Nothing  in this article should be construed to
    27  impede existing programs, benefits, or protections for LGBT residents at
    28  long-term care facilities.
    29    § 270. Violations. 1.  A violation of the provisions of  this  article
    30  shall  be  treated  as  a  violation  under section twelve of the public
    31  health law.
    32    2. Any facility that intentionally  violates  any  provision  of  this
    33  article  shall  be liable, in a civil action or proceeding maintained by
    34  one of more residents of the long-term  care  facility,  for  injunctive
    35  relief, damages, or any other appropriate relief in law or equity. If it
    36  shall appear to the satisfaction of the court or justice that the facil-
    37  ity  has,  in  fact, violated a provision of this article, an injunction
    38  may be issued by such court or justice, enjoining  and  restraining  any
    39  further  violation,  without  requiring  proof  that any resident of the
    40  long-term care facility has, in fact, been injured or damaged thereby.
    41    § 2. This act shall take effect on the thirtieth day  after  it  shall
    42  have  become  a law.   Effective immediately, the addition, amendment or
    43  repeal of any rule or regulation necessary  for  the  implementation  of
    44  this  act  on  its effective date are authorized to be made on or before
    45  such date.
feedback