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 7-0)
Status: (Introduced - Dead) 2020-03-02 - PRINT NUMBER 2912C [S02912 Detail]
Download: New_York-2019-S02912-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 2912--C 2019-2020 Regular Sessions IN SENATE January 30, 2019 ___________ Introduced by Sens. HOYLMAN, KENNEDY, RIVERA, SKOUFIS -- read twice and ordered printed, and when printed to be committed to the Committee on Aging -- committee discharged, bill amended, ordered reprinted as amended and recommitted 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 -- recommitted to the Committee on Aging in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the public health law, in relation to establishing the lesbian, gay, bisexual, and transgender long-term care facility resi- dents' 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 public health law is amended by adding a new article 2 46-C to read as follows: 3 ARTICLE 46-C 4 LESBIAN, GAY, BISEXUAL, AND TRANSGENDER LONG-TERM CARE FACILITY 5 RESIDENTS' BILL OF RIGHTS 6 Section 4670. Definitions. 7 4671. Unlawful actions. 8 4672. Recordkeeping. 9 4673. Protection of personally identifiable information. 10 4674. Resident privacy. 11 4675. Training. 12 4676. Application. 13 4677. Violations. 14 § 4670. 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. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01537-08-0S. 2912--C 2 1 2. "Gender-nonconforming" shall mean a person whose gender expression 2 does not conform to stereotypical expectations of how a man or woman 3 should appear or act. 4 3. "LGBT" shall mean lesbian, gay, bisexual, or transgender. 5 4. "Long-term care facilities" or "facilities" shall mean residential 6 health care facilities as defined in subdivision three of section twen- 7 ty-eight hundred one of this chapter, adult care facilities as defined 8 in subdivision twenty-one of section two of the social services law, and 9 assisted living residences, as defined in article forty-six-B of this 10 chapter, or any facilities which hold themselves out or advertise them- 11 selves as providing assisted living services and which are required to 12 be licensed or certified under the social services law or this chapter. 13 5. "Long-term care facility staff" or "facility staff" shall mean all 14 individuals employed by or contracted directly with the facility. 15 6. "Resident" shall mean a resident or patient of a long-term care 16 facility. 17 7. "Transition" shall mean to undergo a process by which a person 18 changes physical sex characteristics or gender expression to match the 19 person's inner sense of being male or female. This process may include, 20 among other things, a name change, a change in preferred pronouns, and a 21 change in social gender expression, as indicated by hairstyle, clothing, 22 and restroom use. Transition may or may not include hormone use and 23 surgery. 24 § 4671. Unlawful actions. 1. Except as provided in subdivision two of 25 this section, it shall be unlawful for a long-term care facility or 26 facility staff to take any of the following actions wholly or partially 27 for a discriminatory reason on the basis of a person's actual or 28 perceived sexual orientation, gender identity or expression, or human 29 immunodeficiency virus (HIV) status: 30 (a) deny admission to a long-term care facility, transfer or refuse to 31 transfer a resident within a facility or to another facility, or 32 discharge or evict a resident from a facility; 33 (b) deny a request by residents to share a room; 34 (c) where rooms are assigned by gender, assigning, reassigning or 35 refusing to assign a room to a transgender resident other than in 36 accordance with the transgender resident's gender identity, unless at 37 the transgender resident's request; 38 (d) prohibit a resident from using, or harass a resident who seeks to 39 use or does use, a restroom available to other persons of the same 40 gender identity, regardless of whether the resident has taken or is 41 taking hormones, has had transition-related surgery, or is making a 42 gender transition or appears to be gender-nonconforming. Harassment 43 includes, but is not limited to, requiring a resident to show identity 44 documents in order to gain entrance to a restroom available to other 45 persons of the same gender identity; 46 (e) willfully and repeatedly fail to use a resident's preferred name 47 or pronouns after being clearly informed of the preferred name or 48 pronouns, even if the resident is not present; 49 (f) deny a resident the right to wear or be dressed in clothing, 50 accessories, or cosmetics that are permitted for any other resident; 51 (g) restrict a resident's right to associate with other residents or 52 with visitors, including the right to consensual expression of intimacy 53 or sexual relations, unless the restriction is uniformly applied to all 54 residents in a nondiscriminatory manner; andS. 2912--C 3 1 (h) deny or restrict a resident from accessing appropriate medical or 2 nonmedical care, or provide medical or nonmedical care, that unreason- 3 ably demeans the resident's dignity or causes avoidable discomfort. 4 2. The provisions of this section shall not apply to the extent that 5 they are incompatible with any professionally reasonable clinical judg- 6 ment that is based on articulable facts of clinical significance. 7 3. Each facility shall post the following notice alongside its current 8 nondiscrimination policy in all places and on all materials where that 9 policy is posted: "(NAME OF FACILITY) DOES NOT DISCRIMINATE AND DOES 10 NOT PERMIT DISCRIMINATION, INCLUDING, BUT NOT LIMITED TO, BULLYING, 11 ABUSE, HARASSMENT, OR DIFFERENTIAL TREATMENT ON THE BASIS OF ACTUAL OR 12 PERCEIVED SEXUAL ORIENTATION, GENDER IDENTITY OR EXPRESSION, OR HIV 13 STATUS, OR BASED ON ASSOCIATION WITH ANOTHER INDIVIDUAL ON ACCOUNT OF 14 THAT INDIVIDUAL'S ACTUAL OR PERCEIVED SEXUAL ORIENTATION, GENDER IDENTI- 15 TY OR EXPRESSION, OR HIV STATUS. YOU MAY FILE A COMPLAINT WITH THE 16 OFFICE OF THE NEW YORK STATE LONG-TERM CARE OMBUDSMAN PROGRAM (PROVIDE 17 CONTACT INFORMATION) IF YOU BELIEVE THAT YOU HAVE EXPERIENCED THIS KIND 18 OF DISCRIMINATION." 19 § 4672. Recordkeeping. 1. A facility shall employ procedures for 20 recordkeeping, including, but not limited to, records generated at the 21 time of admission, that include the gender identity, correct name, as 22 indicated by the resident, and pronoun of each resident, as indicated by 23 the resident and such records will be kept up to date. 24 2. The New York state long-term care ombudsman program shall employ 25 procedures for recordkeeping of complaints filed from residents of long- 26 term care facilities pursuant to this article, and shall establish a 27 method of publicly reporting these complaints while maintaining resi- 28 dents' individual privacy. 29 § 4673. Protection of personally identifiable information. Long-term 30 care facilities shall protect personally identifiable information 31 regarding residents' sexual orientation, whether a resident is transgen- 32 der, a resident's transition history, and HIV status from unauthorized 33 disclosure, as required by the federal Health Insurance Portability and 34 Accountability Act of 1996 (42 U.S.C. Sec. 300gg), if applicable, and 35 any other applicable provision of federal or state law. A facility shall 36 take any steps reasonably necessary to minimize the likelihood of inad- 37 vertent or incidental disclosure of that information to other residents, 38 visitors, or facility staff, except to the minimum extent necessary for 39 facility staff to perform their duties. 40 § 4674. Resident privacy. Long-term care facility staff not directly 41 involved in providing direct care to a resident, including, but not 42 limited to, a transgender or gender-nonconforming resident, shall not be 43 present during physical examination or the provision of personal care to 44 that resident if the resident is partially or fully unclothed without 45 the express permission of that resident, or the resident's legally 46 authorized representative or responsible party. A facility shall use 47 doors, curtains, screens, or other effective visual barriers to provide 48 bodily privacy for all residents, including, but not limited to, trans- 49 gender or gender-nonconforming residents, whenever they are partially or 50 fully unclothed. In addition, all residents, including, but not limited 51 to, LGBT or gender-nonconforming residents, shall be informed of and 52 have the right to refuse to be examined, observed, or treated by any 53 facility staff when the primary purpose is educational or informational 54 rather than therapeutic, or for resident appraisal or reappraisal, and 55 that refusal shall not diminish the resident's access to care for the 56 primary purpose of diagnosis or treatment.S. 2912--C 4 1 § 4675. Training. 1. At least once every two years, a long-term care 2 facility shall ensure that each facility staff member who works directly 3 with residents receives training on cultural competency focusing on 4 patients who identify as LGBT and patients living with HIV. 5 2. The instruction required by subdivision one of this section shall 6 be provided by an entity or individual with expertise in identifying and 7 addressing the legal and social challenges faced by LGBT people and 8 people living with HIV as they age and reside in long-term care facili- 9 ties and shall teach attitudes, knowledge, and skills that enable facil- 10 ity staff to care effectively for residents who identify as LGBT and 11 residents living with HIV, which may include: 12 (a) understanding and applying relevant data concerning health dispar- 13 ities and risk factors for patients seeking clinical care who identify 14 as LGBT and patients living with HIV; 15 (b) legal requirements pertaining to patients who identify as LGBT and 16 patients living with HIV; 17 (c) best practices for collection, storage, use, and confidentiality 18 of information regarding sexual orientation, gender identity and HIV 19 status; 20 (d) best practices for training support staff regarding treatment of 21 patients who identify as LGBT or are living with HIV and their families; 22 and 23 (e) understanding the intersections between systems of oppression and 24 discrimination, recognizing that those who identify as LGBT or are 25 living with HIV may experience these systems in varying degrees of 26 intensity, addressing underlying cultural biases, and providing nondis- 27 criminatory care. 28 3. Facility staff required to receive training under this section 29 shall receive the training within six months of hire unless the person 30 provides proof of having received comparable training within the prior 31 two years that the facility determines complies with this section. If 32 the facility accepts the person's proof of prior training, a record of 33 the content of the prior training sufficient to determine its compliance 34 with this section must be kept on site at the facility. 35 4. The department, in conjunction with the office for the aging, shall 36 develop and implement regulations for the conduct of training as 37 required by this section. 38 § 4676. Application. Nothing in this article should be construed to 39 impede existing programs, benefits, or protections for LGBT residents or 40 residents living with HIV at long-term care facilities. 41 § 4677. Violations. 1. A violation of the provisions of this article 42 shall be treated as a violation under section twelve of this chapter. 43 2. Any facility that intentionally violates any provision of this 44 article shall be liable, in a civil action or proceeding maintained by 45 one of more residents of the long-term care facility, for injunctive 46 relief, damages, or any other appropriate relief in law or equity. If it 47 shall appear to the satisfaction of the court or justice that the facil- 48 ity has, in fact, violated a provision of this article, an injunction 49 may be issued by such court or justice, enjoining and restraining any 50 further violation, without requiring proof that any resident of the 51 long-term care facility has, in fact, been injured or damaged thereby. 52 § 2. This act shall take effect on the one hundred eightieth day after 53 it shall have become a law. Effective immediately, the addition, amend- 54 ment and/or repeal of any rule or regulation necessary for the implemen- 55 tation of this act on its effective date are authorized to be made and 56 completed on or before such date.