Text of MD HB 1010 (2020)

EXPLANATION: CAPITALS INDICATE MATTER ADDED TO EXISTING LAW. [Brackets] indicate matter deleted from existing law. *hb1010* HOUSE BILL 1010 J3 0lr2276 By: Delegates Acevero, B. Barnes, Bridges, Charkoudian, Clippinger, Cullison, D.M. Davis, W. Fisher, Fraser–Hidalgo, Gilchrist, Guyton, Ivey, M. Jackson, Kaiser, Kerr, Korman, R. Lewis, Lierman, Love, McIntosh, Moon, Mosby, Palakovich Carr, Qi, Shetty, Smith, Solomon, Stewart, Wells, Wilkins, Williams, and P. Young Introduced and read first time: February 5, 2020 Assigned to: Health and Government Operations A BILL ENTITLED AN ACT concerning 1 Health Care Facilities – Discrimination 2 (LGBTQ Senior Bill of Rights) 3 FOR the purpose of prohibiting certain facilities or certain staff from discriminating against 4 certain individuals or residents on certain bases; requiring certain facilities to post 5 a certain notice next to the facility’s nondiscrimination policy in certain locations; 6 requiring certain facilities to include a certain notice in certain materials; providing 7 for the contents of the notice; requiring certain facilities to keep certain records, 8 comply with certain laws, and to use doors, curtains, screens, or other visual barriers 9 for certain purposes; prohibiting certain facility staff from being present during 10 certain physical examinations or the provision of personal care to certain residents 11 under certain circumstances; requiring that all residents of a facility be informed of 12 and have certain rights; prohibiting a certain refusal by a certain resident from 13 diminishing access to certain care; providing that a person who violates this Act is 14 subject to certain penalties; defining certain terms; and generally relating to 15 discrimination by health care facilities. 16 BY adding to 17 Article – Health – General 18 Section 19–355.1 19 Annotated Code of Maryland 20 (2019 Replacement Volume) 21 BY repealing and reenacting, without amendments, 22 Article – Health – General 23 Section 19–359 24 Annotated Code of Maryland 25 2 HOUSE BILL 1010 (2019 Replacement Volume) 1 SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 2 That the Laws of Maryland read as follows: 3 Article – Health – General 4 19–355.1. 5 (A) (1) IN THIS SECTION THE FOLLOWING WORDS HAVE THE MEANINGS 6 INDICATED. 7 (2) “DISCRIMINATION” INCLUDES: 8 (I) DENYING ADMISSION TO A FACILITY, TRANSFERRING OR 9 REFUSING TO TRANSFER A RESIDENT WITHIN A FACILITY OR TO ANOTHER FACILITY, 10 OR DISCHARGING OR EVICTING A RESIDENT FROM A FACILITY; 11 (II) DENYING A REQUEST BY RESIDENTS TO SHARE A ROOM IN A 12 FACILITY; 13 (III) IF ROOMS ARE ASSIGNED BY GENDER IN A FACILITY, 14 ASSIGNING, REASSIGNING, OR REFUSING TO ASSIGN A ROOM TO A TRANSGENDER 15 RESIDENT OTHER THAN IN ACCORDANCE WITH THE TRANSGENDER RESIDENT’S 16 GENDER IDENTITY, UNLESS AT THE TRANSGENDER RESIDENT’S REQUEST; 17 (IV) PROHIBITING A RESIDENT IN A FACILITY FROM USING, OR 18 HARASSING A RESIDENT WHO SEEKS TO USE, OR DOES USE, A RESTROOM AVAILABLE 19 TO OTHER INDIVIDUALS OF THE SAME GENDER IDENTITY, REGARDLESS OF 20 WHETHER THE RESIDENT IS MAKING A GENDER TRANSITION OR APPEARS TO BE 21 GENDER–NONCONFORMING; 22 (V) WILLFULLY AND REPEATEDLY FAILING TO USE A 23 RESIDENT’S PREFERRED NAME OR PRONOUNS AFTER BEING CLEARLY INFORMED OF 24 THE PREFERRED NAME OR PRONOUNS; 25 (VI) DENYING A RESIDENT THE RIGHT TO WEAR OR BE DRESSED 26 IN CLOTHING, ACCESSORIES, OR COSMETICS THAT ARE ALLOWED FOR ANY OTHER 27 RESIDENT; 28 (VII) RESTRICTING A RESIDENT’S RIGHT TO ASSOCIATE WITH 29 OTHER RESIDENTS OR VISITORS, INCLUDING THE RIGHT TO CONSENSUAL SEXUAL 30 RELATIONS, UNLESS THE RESTRICTION UNIFORMLY APPLIES TO ALL RESIDENTS IN 31 A NONDISCRIMINATORY MANNER; AND 32 HOUSE BILL 1010 3 (VIII) DENYING OR RESTRICTING MEDICAL OR NONMEDICAL 1 CARE THAT IS APPROPRIATE TO A RESIDENT’S ORGANS AND BODILY NEEDS, OR 2 PROVIDING MEDICAL OR NONMEDICAL CARE IN A MANNER THAT, TO A SIMILARLY 3 SITUATED REASONABLE INDIVIDUAL, UNDULY DEMEANS THE RESIDENT’S DIGNITY 4 OR CAUSES AVOIDABLE DISCOMFORT. 5 (3) “FACILITY” HAS THE MEANING STATED IN § 19–343(A) OF THIS 6 SUBTITLE. 7 (4) “GENDER EXPRESSION” MEANS THE REPRESENTATION OF 8 GENDER AS EXPRESSED BY AN INDIVIDUAL’S NAME, PRONOUNS, CLOTHING, 9 HAIRSTYLE, BEHAVIOR, VOICE, OR SIMILAR CHARACTERISTICS. 10 (5) “GENDER IDENTITY” HAS THE MEANING STATED IN § 20–101 OF 11 THE STATE GOVERNMENT ARTICLE. 12 (6) “GENDER–NONCONFORMING” MEANS A PERSON WHOSE GENDER 13 EXPRESSION DOES NOT CONFORM TO STEREOTYPICAL EXPECTATIONS OF HOW A 14 MAN OR WOMAN SHOULD APPEAR OR ACT. 15 (7) “HARASSMENT” INCLUDES REQUIRING A RESIDENT OF A 16 FACILITY TO SHOW IDENTITY DOCUMENTS TO GAIN ENTRANCE TO A RESTROOM 17 AVAILABLE TO OTHER INDIVIDUALS OF THE SAME GENDER IDENTITY. 18 (8) “SEXUAL ORIENTATION” HAS THE MEANING STATED IN § 20–101 19 OF THE STATE GOVERNMENT ARTICLE. 20 (9) “TRANSGENDER” MEANS AN INDIVIDUAL WHOSE GENDER 21 IDENTITY DIFFERS FROM THE INDIVIDUAL’S ASSIGNED OR PRESUMED SEX AT BIRTH. 22 (B) A FACILITY OR THE STAFF OF A FACILITY MAY NOT DISCRIMINATE 23 AGAINST AN INDIVIDUAL OR A RESIDENT BASED ON THE ACTUAL OR PERCEIVED 24 SEXUAL ORIENTATION, GENDER IDENTITY, GENDER EXPRESSION, OR HUMAN 25 IMMUNODEFICIENCY VIRUS (HIV) STATUS OF THE INDIVIDUAL OR RESIDENT. 26 (C) (1) EACH FACILITY SHALL: 27 (I) POST A NOTICE THAT MEETS THE REQUIREMENTS OF 28 PARAGRAPH (3) OF THIS SUBSECTION AND THAT IS IN A FORM DEVELOPED BY THE 29 DEPARTMENT; AND 30 (II) INCLUDE THE NOTICE REQUIRED TO BE POSTED UNDER 31 4 HOUSE BILL 1010 ITEM (I) OF THIS PARAGRAPH IN ANY MATERIALS THAT INCLUDE THE FACILITY’S 1 NONDISCRIMINATION POLICY. 2 (2) THE NOTICE REQUIRED TO BE POSTED UNDER PARAGRAPH (1)(I) 3 OF THIS SUBSECTION SHALL BE POSTED NEXT TO THE FACILITY’S 4 NONDISCRIMINATION POLICY IN EACH LOCATION WHERE THE NONDISCRIMINATION 5 POLICY IS POSTED. 6 (3) THE NOTICE REQUIRED UNDER PARAGRAPH (1) OF THIS 7 SUBSECTION SHALL PROVIDE: 8 (I) THAT THE FACILITY DOES NOT DISCRIMINATE OR ALLOW 9 DISCRIMINATION, INCLUDING BULLYING, ABUSE, OR HARASSMENT ON THE BASIS 10 OF: 11 1. ACTUAL OR PERCEIVED SEXUAL ORIENTATION, 12 GENDER IDENTITY, GENDER EXPRESSION, OR HIV STATUS; OR 13 2. AN ASSOCIATION WITH ANOTHER INDIVIDUAL ON 14 ACCOUNT OF THAT INDIVIDUAL’S ACTUAL OR PERCEIVED SEXUAL ORIENTATION, 15 GENDER IDENTITY, GENDER EXPRESSION, OR HIV STATUS; AND 16 (II) INFORMATION ABOUT FILING A COMPLAINT WITH THE 17 OFFICE OF THE STATE LONG–TERM CARE OMBUDSMAN. 18 (D) (1) A FACILITY SHALL: 19 (I) KEEP RECORDS FOR A RESIDENT AT THE TIME OF 20 ADMISSION THAT INCLUDE GENDER IDENTITY, THE NAME PROVIDED BY THE 21 RESIDENT, AND EACH PRONOUN PROVIDED BY THE RESIDENT; 22 (II) COMPLY WITH ALL APPROPRIATE FEDERAL AND STATE 23 LAWS REGARDING THE PRIVACY OF THE RESIDENT; AND 24 (III) USE DOORS, CURTAINS, SCREENS, OR OTHER VISUAL 25 BARRIERS TO PROVIDE PRIVACY FOR RESIDENTS, INCLUDING TRANSGENDER OR 26 GENDER–NONCONFORMING RESIDENTS, WHENEVER THE RESIDENT IS PARTIALLY 27 OR FULLY UNCLOTHED. 28 (2) FACILITY STAFF WHO ARE NOT DIRECTLY INVOLVED WITH 29 PROVIDING DIRECT CARE TO A RESIDENT, INCLUDING A TRANSGENDER OR 30 GENDER–NONCONFORMING RESIDENT, MAY NOT BE PRESENT DURING A PHYSICAL 31 EXAMINATION OR THE PROVISION OF PERSONAL CARE TO A RESIDENT IF THE 32 HOUSE BILL 1010 5 RESIDENT IS PARTIALLY OR FULLY UNCLOTHED WITHOUT THE PERMISSION OF THE 1 RESIDENT OR THE RESIDENT’S LEGALLY AUTHORIZED REPRESENTATIVE. 2 (3) (I) ALL RESIDENTS OF A FACILITY, INCLUDING TRANSGENDER 3 OR GENDER–NONCONFORMING RESIDENTS, SHALL BE INFORMED OF AND HAVE THE 4 RIGHT TO REFUSE TO BE EXAMINED, OBSERVED, OR TREATED BY FACILITY STAFF IF 5 THE PRIMARY PURPOSE OF THE EXAMINATION, OBSERVATION, OR TREATMENT IS 6 EDUCATIONAL OR INFORMATIONAL. 7 (II) A RESIDENT’S REFUSAL UNDER SUBPARAGRAPH (I) OF THIS 8 PARAGRAPH MAY NOT DIMINISH THE RESIDENT’S ACCESS TO CARE IF THE PRIMARY 9 PURPOSE OF THE CARE IS FOR DIAGNOSIS OR TREATMENT. 10 (E) A PERSON WHO VIOLATES ANY PROVISION OF THIS SECTION IS SUBJECT 11 TO THE PENALTIES UNDER § 19–359 OF THIS SUBTITLE. 12 19–359. 13 (a) A person who operates a related institution in violation of the rules and 14 regulations that the Secretary adopts for related institutions is guilty of a misdemeanor 15 and on conviction is subject to a fine not exceeding $1,000. Each day a violation is continued 16 after the first conviction is a separate offense. 17 (b) The Secretary may impose a civil money penalty not to exceed $10,000 for each 18 offense under this section. 19 (c) (1) If a civil money penalty is imposed under this section or under § 19–358 20 of this subtitle, the Secretary shall issue an order which shall state the basis on which the 21 order is made, the amount of the civil money penalty imposed, and the manner in which 22 the amount of the civil money penalty was calculated. 23 (2) The operator of an unlicensed hospital or an unlicensed or unregistered 24 related institution shall have the right to appeal from the order imposing the civil money 25 penalty in accordance with Title 10, Subtitle 2 of the State Government Article 26 (Administrative Procedure Act – Contested Cases). 27 SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 28 October 1, 2020. 29