Text of MD HB 1118 (2021)

EXPLANATION: CAPITALS INDICATE MATTER ADDED TO EXISTING LAW. [Brackets] indicate matter deleted from existing law. *hb1118* HOUSE BILL 1118 J3 1lr2126 HB 1010/20 – HGO By: Delegate Acevero Introduced and read first time: February 5, 2021 Assigned to: Health and Government Operations A BILL ENTITLED AN ACT concerning 1 Health Care Facilities – Discrimination 2 FOR the purpose of prohibiting certain facilities or certain staff from discriminating against 3 certain individuals or residents on certain bases; requiring certain facilities to post 4 a certain notice next to the facility’s nondiscrimination policy in certain locations; 5 requiring certain facilities to include a certain notice in certain materials; providing 6 for the contents of the notice; requiring certain facilities to keep certain records, 7 comply with certain laws, and to use doors, curtains, screens, or other visual barriers 8 for certain purposes; prohibiting certain facility staff from being present during 9 certain physical examinations or the provision of personal care to certain residents 10 under certain circumstances; requiring that all residents of a facility be informed of 11 and have certain rights; prohibiting a certain refusal by a certain resident from 12 diminishing access to certain care; providing that a person who violates this Act is 13 subject to certain penalties; defining certain terms; and generally relating to 14 discrimination by health care facilities. 15 BY adding to 16 Article – Health – General 17 Section 19–355.1 18 Annotated Code of Maryland 19 (2019 Replacement Volume and 2020 Supplement) 20 BY repealing and reenacting, without amendments, 21 Article – Health – General 22 Section 19–359 23 Annotated Code of Maryland 24 (2019 Replacement Volume and 2020 Supplement) 25 SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 26 That the Laws of Maryland read as follows: 27 2 HOUSE BILL 1118 Article – Health – General 1 19–355.1. 2 (A) (1) IN THIS SECTION THE FOLLOWING WORDS HAVE THE MEANINGS 3 INDICATED. 4 (2) “DISCRIMINATION” INCLUDES: 5 (I) DENYING ADMISSION TO A FACILITY, TRANSFERRING OR 6 REFUSING TO TRANSFER A RESIDENT WITHIN A FACILITY OR TO ANOTHER FACILITY, 7 OR DISCHARGING OR EVICTING A RESIDENT FROM A FACILITY; 8 (II) DENYING A REQUEST BY RESIDENTS TO SHARE A ROOM IN A 9 FACILITY; 10 (III) IF ROOMS ARE ASSIGNED BY GENDER IN A FACILITY, 11 ASSIGNING, REASSIGNING, OR REFUSING TO ASSIGN A ROOM TO A TRANSGENDER 12 RESIDENT OTHER THAN IN ACCORDANCE WITH THE TRANSGENDER RESIDENT’S 13 GENDER IDENTITY, UNLESS AT THE TRANSGENDER RESIDENT’S REQUEST; 14 (IV) PROHIBITING A RESIDENT IN A FACILITY FROM USING, OR 15 HARASSING A RESIDENT WHO SEEKS TO USE, OR DOES USE, A RESTROOM AVAILABLE 16 TO OTHER INDIVIDUALS OF THE SAME GENDER IDENTITY, REGARDLESS OF 17 WHETHER THE RESIDENT IS MAKING A GENDER TRANSITION OR APPEARS TO BE 18 GENDER NONCONFORMING; 19 (V) WILLFULLY AND REPEATEDLY FAILING TO USE A 20 RESIDENT’S PREFERRED NAME OR PRONOUNS AFTER BEING CLEARLY INFORMED OF 21 THE PREFERRED NAME OR PRONOUNS; 22 (VI) DENYING A RESIDENT THE RIGHT TO WEAR OR BE DRESSED 23 IN CLOTHING, ACCESSORIES, OR COSMETICS THAT ARE ALLOWED FOR ANY OTHER 24 RESIDENT; 25 (VII) RESTRICTING A RESIDENT’S RIGHT TO ASSOCIATE WITH 26 OTHER RESIDENTS OR VISITORS, INCLUDING THE RIGHT TO CONSENSUAL SEXUAL 27 RELATIONS, UNLESS THE RESTRICTION UNIFORMLY APPLIES TO ALL RESIDENTS IN 28 A NONDISCRIMINATORY MANNER; AND 29 (VIII) DENYING OR RESTRICTING MEDICAL OR NONMEDICAL 30 CARE THAT IS APPROPRIATE TO A RESIDENT’S ORGANS AND BODILY NEEDS, OR 31 PROVIDING MEDICAL OR NONMEDICAL CARE IN A MANNER THAT, TO A SIMILARLY 32 HOUSE BILL 1118 3 SITUATED REASONABLE INDIVIDUAL, UNDULY DEMEANS THE RESIDENT’S DIGNITY 1 OR CAUSES AVOIDABLE DISCOMFORT. 2 (3) “FACILITY” HAS THE MEANING STATED IN § 19–343(A) OF THIS 3 SUBTITLE. 4 (4) “GENDER EXPRESSION” MEANS THE REPRESENTATION OF 5 GENDER AS EXPRESSED BY AN INDIVIDUAL’S NAME, PRONOUNS, CLOTHING, 6 HAIRSTYLE, BEHAVIOR, VOICE, OR SIMILAR CHARACTERISTICS. 7 (5) “GENDER IDENTITY” HAS THE MEANING STATED IN § 20–101 OF 8 THE STATE GOVERNMENT ARTICLE. 9 (6) “GENDER NONCONFORMING” MEANS A PERSON WHOSE GENDER 10 EXPRESSION DOES NOT CONFORM TO STEREOTYPICAL EXPECTATIONS OF HOW A 11 MAN OR WOMAN SHOULD APPEAR OR ACT. 12 (7) “HARASSMENT” INCLUDES REQUIRING A RESIDENT OF A 13 FACILITY TO SHOW IDENTITY DOCUMENTS TO GAIN ENTRANCE TO A RESTROOM 14 AVAILABLE TO OTHER INDIVIDUALS OF THE SAME GENDER IDENTITY. 15 (8) “SEXUAL ORIENTATION” HAS THE MEANING STATED IN § 20–101 16 OF THE STATE GOVERNMENT ARTICLE. 17 (9) “TRANSGENDER” MEANS AN INDIVIDUAL WHOSE GENDER 18 IDENTITY DIFFERS FROM THE INDIVIDUAL’S ASSIGNED OR PRESUMED SEX AT BIRTH. 19 (B) A FACILITY OR THE STAFF OF A FACILITY MAY NOT DISCRIMINATE 20 AGAINST AN INDIVIDUAL OR A RESIDENT BASED ON THE ACTUAL OR PERCEIVED 21 SEXUAL ORIENTATION, GENDER IDENTITY, GENDER EXPRESSION, OR HUMAN 22 IMMUNODEFICIENCY VIRUS (HIV) STATUS OF THE INDIVIDUAL OR RESIDENT. 23 (C) (1) EACH FACILITY SHALL: 24 (I) POST A NOTICE THAT MEETS THE REQUIREMENTS OF 25 PARAGRAPH (3) OF THIS SUBSECTION AND THAT IS IN A FORM DEVELOPED BY THE 26 DEPARTMENT; AND 27 (II) INCLUDE THE NOTICE REQUIRED TO BE POSTED UNDER 28 ITEM (I) OF THIS PARAGRAPH IN ANY MATERIALS THAT INCLUDE THE FACILITY’S 29 NONDISCRIMINATION POLICY. 30 (2) THE NOTICE REQUIRED TO BE POSTED UNDER PARAGRAPH (1)(I) 31 4 HOUSE BILL 1118 OF THIS SUBSECTION SHALL BE POSTED NEXT TO THE FACILITY’S 1 NONDISCRIMINATION POLICY IN EACH LOCATION WHERE THE NONDISCRIMINATION 2 POLICY IS POSTED. 3 (3) THE NOTICE REQUIRED UNDER PARAGRAPH (1) OF THIS 4 SUBSECTION SHALL PROVIDE: 5 (I) THAT THE FACILITY DOES NOT DISCRIMINATE OR ALLOW 6 DISCRIMINATION, INCLUDING BULLYING, ABUSE, OR HARASSMENT ON THE BASIS 7 OF: 8 1. ACTUAL OR PERCEIVED SEXUAL ORIENTATION, 9 GENDER IDENTITY, GENDER EXPRESSION, OR HIV STATUS; OR 10 2. AN ASSOCIATION WITH ANOTHER INDIVIDUAL ON 11 ACCOUNT OF THAT INDIVIDUAL’S ACTUAL OR PERCEIVED SEXUAL ORIENTATION, 12 GENDER IDENTITY, GENDER EXPRESSION, OR HIV STATUS; AND 13 (II) INFORMATION ABOUT FILING A COMPLAINT WITH THE 14 OFFICE OF THE STATE LONG–TERM CARE OMBUDSMAN. 15 (D) (1) A FACILITY SHALL: 16 (I) KEEP RECORDS FOR A RESIDENT AT THE TIME OF 17 ADMISSION THAT INCLUDE GENDER IDENTITY, THE NAME PROVIDED BY THE 18 RESIDENT, AND EACH PRONOUN PROVIDED BY THE RESIDENT; 19 (II) COMPLY WITH ALL APPROPRIATE FEDERAL AND STATE 20 LAWS REGARDING THE PRIVACY OF THE RESIDENT; AND 21 (III) USE DOORS, CURTAINS, SCREENS, OR OTHER VISUAL 22 BARRIERS TO PROVIDE PRIVACY FOR RESIDENTS, INCLUDING TRANSGENDER OR 23 GENDER NONCONFORMING RESIDENTS, WHENEVER THE RESIDENT IS PARTIALLY 24 OR FULLY UNCLOTHED. 25 (2) FACILITY STAFF WHO ARE NOT DIRECTLY INVOLVED WITH 26 PROVIDING DIRECT CARE TO A RESIDENT, INCLUDING A TRANSGENDER OR GENDER 27 NONCONFORMING RESIDENT, MAY NOT BE PRESENT DURING A PHYSICAL 28 EXAMINATION OR THE PROVISION OF PERSONAL CARE TO A RESIDENT IF THE 29 RESIDENT IS PARTIALLY OR FULLY UNCLOTHED WITHOUT THE PERMISSION OF THE 30 RESIDENT OR THE RESIDENT’S LEGALLY AUTHORIZED REPRESENTATIVE. 31 (3) (I) ALL RESIDENTS OF A FACILITY, INCLUDING TRANSGENDER 32 HOUSE BILL 1118 5 OR GENDER NONCONFORMING RESIDENTS, SHALL BE INFORMED OF AND HAVE THE 1 RIGHT TO REFUSE TO BE EXAMINED, OBSERVED, OR TREATED BY FACILITY STAFF IF 2 THE PRIMARY PURPOSE OF THE EXAMINATION, OBSERVATION, OR TREATMENT IS 3 EDUCATIONAL OR INFORMATIONAL. 4 (II) A RESIDENT’S REFUSAL UNDER SUBPARAGRAPH (I) OF THIS 5 PARAGRAPH MAY NOT DIMINISH THE RESIDENT’S ACCESS TO CARE IF THE PRIMARY 6 PURPOSE OF THE CARE IS FOR DIAGNOSIS OR TREATMENT. 7 (E) A PERSON WHO VIOLATES ANY PROVISION OF THIS SECTION IS SUBJECT 8 TO THE PENALTIES UNDER § 19–359 OF THIS SUBTITLE. 9 19–359. 10 (a) A person who operates a related institution in violation of the rules and 11 regulations that the Secretary adopts for related institutions is guilty of a misdemeanor 12 and on conviction is subject to a fine not exceeding $1,000. Each day a violation is continued 13 after the first conviction is a separate offense. 14 (b) The Secretary may impose a civil money penalty not to exceed $10,000 for each 15 offense under this section. 16 (c) (1) If a civil money penalty is imposed under this section or under § 19–358 17 of this subtitle, the Secretary shall issue an order which shall state the basis on which the 18 order is made, the amount of the civil money penalty imposed, and the manner in which 19 the amount of the civil money penalty was calculated. 20 (2) The operator of an unlicensed hospital or an unlicensed or unregistered 21 related institution shall have the right to appeal from the order imposing the civil money 22 penalty in accordance with Title 10, Subtitle 2 of the State Government Article 23 (Administrative Procedure Act – Contested Cases). 24 SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect 25 October 1, 2021. 26