Text of NE LB 1136 (2022)

LEGISLATURE OF NEBRASKA ONE HUNDRED SEVENTH LEGISLATURE SECOND SESSION LEGISLATIVE BILL 1136 Introduced by Hunt, 8. Read first time January 19, 2022 Committee: A BILL FOR AN ACT relating to health care; to amend section 71-448, 1 Reissue Revised Statutes of Nebraska; to adopt the Senior Care LGBTQ 2 Discrimination Prevention Act; to provide for enforcement under the 3 Health Care Facility Licensure Act; and to repeal the original 4 section. 5 Be it enacted by the people of the State of Nebraska, 6 LB1136 2022 LB1136 2022 -1- Section 1. Sections 1 to 6 of this act shall be known and may be 1 cited as the Senior Care LGBTQ Discrimination Prevention Act. 2 Sec. 2. For purposes of the Senior Care LGBTQ Discrimination 3 Prevention Act: 4 (1) Discrimination includes: 5 (a) Denying admission to a facility, transferring or refusing to 6 transfer a resident within a facility or to another facility, or 7 discharging or evicting a resident from a facility; 8 (b) Denying a request by residents to share a room in a facility; 9 (c) If rooms are assigned by gender in a facility, assigning, 10 reassigning, or refusing to assign a room to a transgender resident other 11 than in accordance with the transgender resident's gender identity, 12 unless at the transgender resident's request; 13 (d) Prohibiting a resident in a facility from using, or harassing a 14 resident who seeks to use, or does use, a restroom available to other 15 individuals of the same gender identity, regardless of whether the 16 resident is making a gender transition or appears to be gender– 17 nonconforming; 18 (e) Willfully and repeatedly failing to use a resident's preferred 19 name or pronouns after being clearly informed of the preferred name or 20 pronouns; 21 (f) Denying a resident the right to wear or be dressed in clothing, 22 accessories, or cosmetics that are allowed for any other resident; 23 (g) Restricting a resident's right to associate with other residents 24 or visitors, including the right to consensual sexual relations, unless 25 the restriction uniformly applies to all residents in a nondiscriminatory 26 manner; and 27 (h) Denying or restricting medical or nonmedical care that is 28 appropriate to a resident's organs and bodily needs; or 29 (i) Providing medical or nonmedical care to a resident in a manner 30 that, to a similarly situated reasonable individual, would unduly demean 31 LB1136 2022 LB1136 2022 -2- such individual's dignity or cause avoidable discomfort; 1 (2) Facility means any of the following as defined in the Health 2 Care Facility Licensure Act: An assisted-living facility, an intermediate 3 care facility, a long-term care hospital, a PACE center, or a skilled 4 nursing facility; 5 (3) Gender expression means the representation of gender as 6 expressed by an individual's name, pronouns, clothing, hairstyle, 7 behavior, voice, or similar characteristics; 8 (4) Gender identity means the gender-related identity, appearance, 9 expression, or behavior of a person, regardless of the person's assigned 10 sex at birth, which may be demonstrated by: 11 (a) Consistent and uniform assertion of the person's gender 12 identity; or 13 (b) Any other evidence that the gender identity is sincerely held as 14 part of the person's core identity; 15 (5) Gender–nonconforming means a person whose gender expression does 16 not conform to stereotypical expectations of how a man or woman should 17 appear or act; 18 (6) Harassment includes requiring a resident of a facility to show 19 identity documents to gain entrance to a restroom available to other 20 individuals of the same gender identity; 21 (7) Sexual orientation means actual or perceived homosexuality, 22 heterosexuality, or bisexuality; and 23 (8) Transgender means an individual whose gender identity differs 24 from the individual's assigned or presumed sex at birth. 25 Sec. 3. A facility or the staff of a facility shall not 26 discriminate against an individual or a resident of such facility based 27 on the individual's or resident's sexual orientation, gender identity, 28 gender expression, or human immunodeficiency virus status. 29 Sec. 4. (1) Each facility shall post a notice in one or more 30 prominent locations within the facility that is in substantially the form 31 LB1136 2022 LB1136 2022 -3- provided in this section. 1 (2) The notice shall: 2 (a) Explain that state law prohibits the facility from 3 discriminating or allowing discrimination, including bullying, abuse, or 4 harassment on the basis of: 5 (i) Sexual orientation, gender identity, gender expression, or human 6 immunodeficiency virus status; or 7 (ii) An individual's association with another individual on account 8 of that other individual's sexual orientation, gender identity, gender 9 expression, or human immunodeficiency virus status; 10 (b) Contain information on how to file a complaint under section 11 71-444; and 12 (c) Contain information regarding the prohibition on retaliation 13 provided in section 71-445. 14 Sec. 5. A facility shall: 15 (1) Keep records for a resident at the time of admission that 16 include the resident's gender identity and preferred name and pronouns; 17 and 18 (2) Comply with all appropriate federal and state laws regarding the 19 privacy of the resident. 20 Sec. 6. (1) A facility shall use doors, curtains, screens, or other 21 visual barriers to provide privacy for residents, including transgender 22 or gender-nonconforming residents, whenever the resident is partially or 23 fully unclothed. 24 (2) Facility staff who are not directly involved with providing 25 direct care to a resident, including a transgender or gender- 26 nonconforming resident, shall not be present during a physical 27 examination or the provision of personal care to a resident if the 28 resident is partially or fully unclothed without the permission of the 29 resident or the resident's legally authorized representative. 30 (3)(a) All residents of a facility, including transgender or gender- 31 LB1136 2022 LB1136 2022 -4- nonconforming residents, shall be informed of and have the right to 1 refuse to be examined, observed, or treated by facility staff if the 2 primary purpose of the examination, observation, or treatment is 3 educational or informational. 4 (b) A facility shall not diminish a resident's access to care, if 5 the primary purpose of the care is for diagnosis or treatment, because 6 the resident exercises the right provided in this subsection. 7 Sec. 7. Section 71-448, Reissue Revised Statutes of Nebraska, is 8 amended to read: 9 71-448 The Division of Public Health of the Department of Health and 10 Human Services may take disciplinary action against a license issued 11 under the Health Care Facility Licensure Act on any of the following 12 grounds: 13 (1) Violation of any of the provisions of the Assisted-Living 14 Facility Act, the Health Care Facility Licensure Act, the Nebraska 15 Nursing Home Act, or the rules and regulations adopted and promulgated 16 under such acts; 17 (2) Committing or permitting, aiding, or abetting the commission of 18 any unlawful act; 19 (3) Conduct or practices detrimental to the health or safety of a 20 person residing in, served by, or employed at the health care facility or 21 health care service; 22 (4) A report from an accreditation body or public agency 23 sanctioning, modifying, terminating, or withdrawing the accreditation or 24 certification of the health care facility or health care service; 25 (5) Failure to allow an agent or employee of the Department of 26 Health and Human Services access to the health care facility or health 27 care service for the purposes of inspection, investigation, or other 28 information collection activities necessary to carry out the duties of 29 the Department of Health and Human Services; 30 (6) Discrimination or retaliation against a person residing in, 31 LB1136 2022 LB1136 2022 -5- served by, or employed at the health care facility or health care service 1 who has submitted a complaint or information to the Department of Health 2 and Human Services; 3 (7) Discrimination or retaliation against a person residing in, 4 served by, or employed at the health care facility or health care service 5 who has presented a grievance or information to the office of the state 6 long-term care ombudsman; 7 (8) Failure to allow a state long-term care ombudsman or an 8 ombudsman advocate access to the health care facility or health care 9 service for the purposes of investigation necessary to carry out the 10 duties of the office of the state long-term care ombudsman as specified 11 in the rules and regulations adopted and promulgated by the Department of 12 Health and Human Services; 13 (9) Violation of the Emergency Box Drug Act or the Pharmacy Practice 14 Act; 15 (10) Failure to file a report required by section 38-1,127 or 16 71-552; 17 (11) Violation of the Medication Aide Act; 18 (12) Failure to file a report of suspected abuse or neglect as 19 required by sections 28-372 and 28-711; 20 (13) Violation of the Automated Medication Systems Act; or 21 (14) Violation of the Dialysis Patient Care Technician Registration 22 Act; or . 23 (15) Violation of the Senior Care LGBTQ Discrimination Prevention 24 Act. 25 Sec. 8. Original section 71-448, Reissue Revised Statutes of 26 Nebraska, is repealed. 27 LB1136 2022 LB1136 2022 -6-