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

Bill Title: Establishes the lesbian, gay, bisexual, and transgender long-term care facility residents' bill of rights.

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Introduced) 2019-06-20 - COMMITTED TO RULES [S02912 Detail]

Download: New_York-2019-S02912-Amended.html

                STATE OF NEW YORK

            Cal. No. 1100

                               2019-2020 Regular Sessions

                    IN SENATE

                                    January 30, 2019

        Introduced  by  Sens. HOYLMAN, RIVERA -- read twice and ordered printed,
          and when printed to be committed to the Committee on Aging --  commit-
          tee  discharged, bill amended, ordered reprinted as amended and recom-
          mitted to said committee -- reported favorably  from  said  committee,
          ordered  to  first  and  second  report,  ordered  to a third reading,
          amended and ordered reprinted, retaining its place  in  the  order  of
          third reading

        AN  ACT to amend the elder law and the public health 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.  Subdivision 1 of section 203 of the elder law  is  amended
     2  to read as follows:
     3    1. The office shall submit to the federal department of health, educa-
     4  tion  and  welfare a state plan for purposes of the federal older Ameri-
     5  cans act of 1965 and subsequent amendments thereto. The office shall  be
     6  the  single state agency for supervising the administration of such plan
     7  and shall be primarily responsible for coordination  of  state  programs
     8  for the aging for purposes of such federal act. The office shall act for
     9  the state in any negotiations relative to the submission and approval of
    10  such  plan and may make such arrangements, not inconsistent with law, as
    11  may be required by or pursuant to federal law to obtain and retain  such
    12  approval  and  to secure for the state the benefits of the provisions of
    13  such federal act.  For the purposes of administering the  federal  older
    14  Americans  Act  of  1965  and  subsequent  amendments  thereto, the term
    15  "greatest social need" shall be interpreted by the office to include the
    16  lesbian, gay, bisexual and transgender senior  population,  as  well  as
    17  seniors living with HIV.
    18    § 2.  The public health law is amended by adding a new article 46-C to
    19  read as follows:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 2912--B                          2

     1                                ARTICLE 46-C
     3                          RESIDENTS' BILL OF RIGHTS
     4  Section 4670. Definitions.
     5          4671. Unlawful actions.
     6          4672. Recordkeeping.
     7          4673. Protection of personally identifiable information.
     8          4674. Resident privacy.
     9          4675. Training.
    10          4676. Application.
    11          4677. Violations.
    12    § 4670. Definitions. For the purposes of this article:
    13    1."Gender  identity  or  expression"  shall  mean a person's actual or
    14  perceived gender-related identity, appearance, behavior, expression,  or
    15  other  gender-related  characteristic  regardless of the sex assigned to
    16  that person at birth, including, but not limited to, the status of being
    17  transgender.
    18    2. "Gender-nonconforming" shall mean a person whose gender  expression
    19  does  not  conform  to  stereotypical expectations of how a man or woman
    20  should appear or act.
    21    3. "LGBT" shall mean lesbian, gay, bisexual, or transgender.
    22    4. "Long-term care facilities" or "facilities" shall mean  residential
    23  health  care facilities as defined in subdivision three of section twen-
    24  ty-eight hundred one of this chapter, adult care facilities  as  defined
    25  in subdivision twenty-one of section two of the social services law, and
    26  assisted  living  residences,  as defined in article forty-six-B of this
    27  chapter, or any facilities which hold themselves out or advertise  them-
    28  selves  as  providing assisted living services and which are required to
    29  be licensed or certified under the social services law or this chapter.
    30    5. "Long-term care facility staff" or "facility staff" shall mean  all
    31  individuals employed by or contracted directly with the facility.
    32    6.  "Resident"  shall  mean  a resident or patient of a long-term care
    33  facility.
    34    7. "Transition" shall mean to undergo a  process  by  which  a  person
    35  changes  physical  sex characteristics or gender expression to match the
    36  person's inner sense of being male or female. This process may  include,
    37  among other things, a name change, a change in preferred pronouns, and a
    38  change in social gender expression, as indicated by hairstyle, clothing,
    39  and  restroom  use.  Transition  may  or may not include hormone use and
    40  surgery.
    41    § 4671. Unlawful actions. 1. Except as provided in subdivision two  of
    42  this  section,  it  shall  be  unlawful for a long-term care facility or
    43  facility staff to take any of the following actions wholly or  partially
    44  for  a  discriminatory  reason  on  the  basis  of  a person's actual or
    45  perceived sexual orientation, gender identity or  expression,  or  human
    46  immunodeficiency virus (HIV) status:
    47    (a) deny admission to a long-term care facility, transfer or refuse to
    48  transfer  a  resident  within  a  facility  or  to  another facility, or
    49  discharge or evict a resident from a facility;
    50    (b) deny a request by residents to share a room;
    51    (c) where rooms are assigned  by  gender,  assigning,  reassigning  or
    52  refusing  to  assign  a  room  to  a  transgender resident other than in
    53  accordance with the transgender resident's gender  identity,  unless  at
    54  the transgender resident's request;
    55    (d)  prohibit a resident from using, or harass a resident who seeks to
    56  use or does use, a restroom available  to  other  persons  of  the  same

        S. 2912--B                          3

     1  gender  identity,  regardless  of  whether  the resident has taken or is
     2  taking hormones, has had transition-related  surgery,  or  is  making  a
     3  gender  transition  or  appears to be gender-nonconforming.   Harassment
     4  includes,  but  is not limited to, requiring a resident to show identity
     5  documents in order to gain entrance to a  restroom  available  to  other
     6  persons of the same gender identity;
     7    (e)  willfully  and repeatedly fail to use a resident's preferred name
     8  or pronouns after being  clearly  informed  of  the  preferred  name  or
     9  pronouns, even if the resident is not present;
    10    (f)  deny  a  resident  the  right  to wear or be dressed in clothing,
    11  accessories, or cosmetics that are permitted for any other resident;
    12    (g) restrict a resident's right to associate with other  residents  or
    13  with  visitors, including the right to consensual expression of intimacy
    14  or sexual relations, unless the restriction is uniformly applied to  all
    15  residents in a nondiscriminatory manner; and
    16    (h)  deny or restrict a resident from accessing appropriate medical or
    17  nonmedical care, or provide medical or nonmedical care,  that  unreason-
    18  ably demeans the resident's dignity or causes avoidable discomfort.
    19    2.  The  provisions of this section shall not apply to the extent that
    20  they are incompatible with any professionally reasonable clinical  judg-
    21  ment that is based on articulable facts of clinical significance.
    22    3. Each facility shall post the following notice alongside its current
    23  nondiscrimination  policy  in all places and on all materials where that
    24  policy is posted:  "(NAME OF FACILITY) DOES NOT  DISCRIMINATE  AND  DOES
    34    § 4672. Recordkeeping. 1.  A  facility  shall  employ  procedures  for
    35  recordkeeping,  including,  but not limited to, records generated at the
    36  time of admission, that include the gender identity,  correct  name,  as
    37  indicated by the resident, and pronoun of each resident, as indicated by
    38  the resident and such records will be kept up to date.
    39    2.  The  New  York state long-term care ombudsman program shall employ
    40  procedures for recordkeeping of complaints filed from residents of long-
    41  term care facilities pursuant to this article,  and  shall  establish  a
    42  method  of  publicly  reporting these complaints while maintaining resi-
    43  dents' individual privacy.
    44    § 4673. Protection of personally identifiable  information.  Long-term
    45  care   facilities  shall  protect  personally  identifiable  information
    46  regarding residents' sexual orientation, whether a resident is transgen-
    47  der, a resident's transition history, and HIV status  from  unauthorized
    48  disclosure,  as required by the federal Health Insurance Portability and
    49  Accountability Act of 1996 (42 U.S.C. Sec. 300gg),  if  applicable,  and
    50  any other applicable provision of federal or state law. A facility shall
    51  take  any steps reasonably necessary to minimize the likelihood of inad-
    52  vertent or incidental disclosure of that information to other residents,
    53  visitors, or facility staff, except to the minimum extent necessary  for
    54  facility staff to perform their duties.
    55    §  4674.  Resident privacy. Long-term care facility staff not directly
    56  involved in providing direct care to  a  resident,  including,  but  not

        S. 2912--B                          4

     1  limited to, a transgender or gender-nonconforming resident, shall not be
     2  present during physical examination or the provision of personal care to
     3  that  resident  if  the resident is partially or fully unclothed without
     4  the  express  permission  of  that  resident,  or the resident's legally
     5  authorized representative or responsible party.  A  facility  shall  use
     6  doors,  curtains, screens, or other effective visual barriers to provide
     7  bodily privacy for all residents, including, but not limited to,  trans-
     8  gender or gender-nonconforming residents, whenever they are partially or
     9  fully  unclothed. In addition, all residents, including, but not limited
    10  to, LGBT or gender-nonconforming residents, shall  be  informed  of  and
    11  have  the  right  to  refuse to be examined, observed, or treated by any
    12  facility staff when the primary purpose is educational or  informational
    13  rather  than  therapeutic, or for resident appraisal or reappraisal, and
    14  that refusal shall not diminish the resident's access to  care  for  the
    15  primary purpose of diagnosis or treatment.
    16    §  4675. Training. 1.  At least once every two years, a long-term care
    17  facility shall ensure that each facility staff member who works directly
    18  with residents receives training  on  cultural  competency  focusing  on
    19  patients who identify as LGBT and patients living with HIV.
    20    2.   The instruction required by subdivision one of this section shall
    21  be provided by an entity or individual with expertise in identifying and
    22  addressing the legal and social challenges  faced  by  LGBT  people  and
    23  people  living with HIV as they age and reside in long-term care facili-
    24  ties and shall teach attitudes, knowledge, and skills that enable facil-
    25  ity staff to care effectively for residents who  identify  as  LGBT  and
    26  residents living with HIV, which may include:
    27    (a) understanding and applying relevant data concerning health dispar-
    28  ities  and  risk factors for patients seeking clinical care who identify
    29  as LGBT and patients living with HIV;
    30    (b) legal requirements pertaining to patients who identify as LGBT and
    31  patients living with HIV;
    32    (c) best practices for collection, storage, use,  and  confidentiality
    33  of  information  regarding  sexual  orientation, gender identity and HIV
    34  status;
    35    (d) best practices for training support staff regarding  treatment  of
    36  patients who identify as LGBT or are living with HIV and their families;
    37  and
    38    (e)  understanding the intersections between systems of oppression and
    39  discrimination, recognizing that those  who  identify  as  LGBT  or  are
    40  living  with  HIV  may  experience  these  systems in varying degrees of
    41  intensity, addressing underlying cultural biases, and providing  nondis-
    42  criminatory care.
    43    3.  Facility  staff  required  to  receive training under this section
    44  shall receive the training within six months of hire unless  the  person
    45  provides  proof  of having received comparable training within the prior
    46  two years that the facility determines complies with this section.    If
    47  the  facility  accepts the person's proof of prior training, a record of
    48  the content of the prior training sufficient to determine its compliance
    49  with this section must be kept on site at the facility.
    50    4. The department, in conjunction with the office for the aging, shall
    51  develop and  implement  regulations  for  the  conduct  of  training  as
    52  required by this section.
    53    §  4676.  Application.  Nothing in this article should be construed to
    54  impede existing programs, benefits, or protections for LGBT residents or
    55  residents living with HIV at long-term care facilities.

        S. 2912--B                          5

     1    § 4677. Violations. 1. A violation of the provisions of  this  article
     2  shall be treated as a violation under section twelve of this chapter.
     3    2.  Any  facility  that  intentionally  violates any provision of this
     4  article shall be liable, in a civil action or proceeding  maintained  by
     5  one  of  more  residents  of the long-term care facility, for injunctive
     6  relief, damages, or any other appropriate relief in law or equity. If it
     7  shall appear to the satisfaction of the court or justice that the facil-
     8  ity has, in fact, violated a provision of this  article,  an  injunction
     9  may  be  issued  by such court or justice, enjoining and restraining any
    10  further violation, without requiring proof  that  any  resident  of  the
    11  long-term care facility has, in fact, been injured or damaged thereby.
    12    § 3. This act shall take effect on the one hundred eightieth day after
    13  it shall have become a law.  Effective immediately, the addition, amend-
    14  ment and/or repeal of any rule or regulation necessary for the implemen-
    15  tation  of  this act on its effective date are authorized to be made and
    16  completed on or before such date.