Text of NV SB 364 (2019)

S.B. 364 - *SB364* SENATE BILL NO. 364–SENATORS PARKS, SPEARMAN; AND WOODHOUSE MARCH 19, 2019 ____________ Referred to Committee on Health and Human Services SUMMARY—Prohibits discrimination against and provides protection for persons who reside in or receive services from certain facilities. (BDR 40-757) FISCAL NOTE: Effect on Local Government: May have Fiscal Impact. Effect on the State: Yes. ~ EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. AN ACT relating to the protection of vulnerable persons; prohibiting a medical facility, facility for the dependent and certain other facilities from engaging in certain discriminatory actions; requiring such facilities to take certain measures to protect the privacy of persons receiving care from the facilities; requiring administrators and employees of such facilities to receive certain training; and providing other matters properly relating thereto. Legislative Counsel’s Digest: Existing law provides for the licensing and regulation of medical facilities, 1 facilities for the dependent and certain other facilities by the Division of Public and 2 Behavioral Health of the Department of Health and Human Services. (NRS 3 449.029-449.240) Section 2 of this bill prohibits such a facility from discriminating 4 against a person based on the actual or perceived race, color, religion, national 5 origin, ancestry, age, gender, physical or mental disability, sexual orientation, 6 gender identity or expression or human immunodeficiency virus status of the 7 person or a person with whom the person associates. Section 3 of this bill requires 8 such a facility to ensure that all records maintained by the facility concerning a 9 person refer to the person using the gender identity, name and pronouns preferred 10 by the person and take certain measures to protect the privacy of persons receiving 11 care from the facility. Section 6 of this bill requires administrators and employees 12 of such facilities to receive training concerning cultural competency and sensitivity 13 in issues relating to the lesbian, gay, bisexual and transgender community. Sections 14 4-10 of this bill make conforming changes. 15 Existing law creates the Office of the State Long-Term Care Ombudsman 16 within the Aging and Disability Services Division of the Department of Health and 17 – 2 – - *SB364* Human Services to advocate for the protection of residents of facilities for long- 18 term care and authorizes the Ombudsman to investigate complaints concerning 19 such facilities. (NRS 427A.125, 427A.135) Section 2 requires a medical facility, a 20 facility for the dependent and certain other facilities required to be licensed by the 21 State Board of Health to post prominently in the facility and include on any 22 marketing website and in any marketing materials: (1) a statement that a person 23 who is discriminated against on prohibited grounds may file a complaint with the 24 Ombudsman; and (2) the contact information for the Ombudsman. 25 THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: Section 1. Chapter 449 of NRS is hereby amended by adding 1 thereto the provisions set forth as sections 2 and 3 of this act. 2 Sec. 2. 1. A medical facility, facility for the dependent or 3 facility which is otherwise required by regulations adopted by the 4 Board pursuant to NRS 449.0303 to be licensed and any employee 5 or independent contractor of such a facility shall not discriminate 6 in the admission of, or the provision of services to, a person based 7 wholly or partially on the actual or perceived race, color, religion, 8 national origin, ancestry, age, gender, physical or mental 9 disability, sexual orientation, gender identity or expression or 10 human immunodeficiency virus status of the person or any person 11 with whom the person associates. 12 2. Prohibited discrimination pursuant to subsection 1 13 includes, without limitation: 14 (a) Denying admission to the facility, transferring or refusing 15 to transfer a person within the facility or to another facility or 16 discharging or evicting a person from the facility. 17 (b) Denying a request by persons to share a room. 18 (c) Preventing a person from wearing or being dressed in 19 clothing, accessories or cosmetics that are authorized for any 20 other person. 21 (d) Restricting a person from associating with other persons, 22 including, without limitation, engaging in consensual sexual 23 relations. 24 (e) Denying or restricting care that is appropriate for the 25 biology of a person or providing care in a manner that unduly 26 demeans or causes avoidable discomfort to a person. 27 (f) Harassing or verbally or physically abusing a person. 28 (g) If rooms are assigned by gender, assigning, reassigning or 29 refusing to assign a room to a transgender person in accordance 30 with the gender identity of the person, except at the request of the 31 person. 32 (h) Prohibiting a person from using, requiring a person to 33 show documentation before using or otherwise harassing a person 34 – 3 – - *SB364* for using or seeking to use a restroom available to other persons of 1 the same gender identity. 2 (i) Willfully failing to use the preferred name or pronouns of a 3 person after the person has informed the facility of his or her 4 preferred name or pronouns. 5 (j) Willfully refusing to comply with the decisions of the spouse 6 or domestic partner of a person who is the authorized 7 representative of the person if the decisions are within the scope of 8 the authorized representation. 9 3. A medical facility, facility for the dependent or facility 10 which is otherwise required by regulations adopted by the Board 11 pursuant to NRS 449.0303 to be licensed shall post prominently in 12 the facility and include on any Internet website and in any 13 materials used to market the facility the following statement: 14 15 [Name of facility] does not discriminate and does not permit 16 discrimination, including, without limitation, bullying, 17 abuse or harassment, on the basis of actual or perceived 18 race, color, religion, national origin, ancestry, age, gender, 19 physical or mental disability, sexual orientation, gender 20 identity or expression or HIV status, or based on association 21 with another person on account of that person’s actual or 22 perceived race, color, religion, national origin, ancestry, 23 age, gender, physical or mental disability, sexual 24 orientation, gender identity or expression or HIV status. 25 26 4. In addition to the statement prescribed by subsection 3, a 27 facility for skilled nursing, facility for intermediate care or 28 residential facility for groups shall post prominently in the facility 29 and include on any Internet website and in any materials used to 30 market the facility: 31 (a) Notice that a person who has experienced prohibited 32 discrimination may file a complaint with the Office of the State 33 Long-Term Care Ombudsman created by NRS 427A.125; and 34 (b) The contact information for the Office of the State Long- 35 Term Care Ombudsman. 36 5. The provisions of this section shall not be construed to: 37 (a) Require a medical facility, facility for the dependent or 38 facility which is otherwise required by regulations adopted by the 39 Board pursuant to NRS 449.0303 to be licensed or an employee or 40 independent contractor thereof to take or refrain from taking any 41 action in violation of reasonable medical standards; or 42 (b) Prohibit a medical facility, facility for the dependent or 43 facility which is otherwise required by regulations adopted by the 44 Board pursuant to NRS 449.0303 to be licensed from adopting a 45 – 4 – - *SB364* policy that is applied uniformly and in a nondiscriminatory 1 manner, including, without limitation, such a policy that bans or 2 restricts sexual relations. 3 Sec. 3. A medical facility, facility for the dependent or facility 4 which is otherwise required by regulations adopted by the Board 5 pursuant to NRS 449.0303 to be licensed shall: 6 1. Ensure that all records maintained by the facility 7 concerning a person refer to the person using the gender identity, 8 name and pronouns preferred by the person; 9 2. Maintain the confidentiality of personally identifiable 10 information concerning the sexual orientation of a person, 11 whether the person is transgender or has undergone a gender 12 transition and the human immunodeficiency virus status of the 13 person and take reasonable actions to prevent the unauthorized 14 disclosure of such information; 15 3. Prohibit employees or independent contractors of the 16 facility who are not performing a physical examination or directly 17 providing care to a person from being present during any portion 18 of the physical examination or care, as applicable, during which 19 the person is fully or partially unclothed without the express 20 permission of the person or the authorized representative of the 21 person; 22 4. Use visual barriers, including, without limitation, doors, 23 curtains and screens, to provide privacy for persons who are fully 24 or partially unclothed; and 25 5. Allow a person to refuse to be examined, observed or 26 treated by an employee or independent contractor of the facility 27 for a purpose that is primarily educational rather than 28 therapeutic. 29 Sec. 4. NRS 449.029 is hereby amended to read as follows: 30 449.029 As used in NRS 449.029 to 449.240, inclusive, and 31 sections 2 and 3 of this act, unless the context otherwise requires, 32 “medical facility” has the meaning ascribed to it in NRS 449.0151 33 and includes a program of hospice care described in NRS 449.196. 34 Sec. 5. NRS 449.0301 is hereby amended to read as follows: 35 449.0301 The provisions of NRS 449.029 to 449.2428, 36 inclusive, and sections 2 and 3 of this act do not apply to: 37 1. Any facility conducted by and for the adherents of any 38 church or religious denomination for the purpose of providing 39 facilities for the care and treatment of the sick who depend solely 40 upon spiritual means through prayer for healing in the practice of 41 the religion of the church or denomination, except that such a 42 facility shall comply with all regulations relative to sanitation and 43 safety applicable to other facilities of a similar category. 44 2. Foster homes as defined in NRS 424.014. 45 – 5 – - *SB364* 3. Any medical facility, facility for the dependent or facility 1 which is otherwise required by the regulations adopted by the Board 2 pursuant to NRS 449.0303 to be licensed that is operated and 3 maintained by the United States Government or an agency thereof. 4 Sec. 6. NRS 449.0302 is hereby amended to read as follows: 5 449.0302 1. The Board shall adopt: 6 (a) Licensing standards for each class of medical facility or 7 facility for the dependent covered by NRS 449.029 to 449.2428, 8 inclusive, and sections 2 and 3 of this act and for programs of 9 hospice care. 10 (b) Regulations governing the licensing of such facilities and 11 programs. 12 (c) Regulations governing the procedure and standards for 13 granting an extension of the time for which a natural person may 14 provide certain care in his or her home without being considered a 15 residential facility for groups pursuant to NRS 449.017. The 16 regulations must require that such grants are effective only if made 17 in writing. 18 (d) Regulations establishing a procedure for the indemnification 19 by the Division, from the amount of any surety bond or other 20 obligation filed or deposited by a facility for refractive surgery 21 pursuant to NRS 449.068 or 449.069, of a patient of the facility who 22 has sustained any damages as a result of the bankruptcy of or any 23 breach of contract by the facility. 24 (e) Regulations that prescribe required training for 25 administrators and employees of medical facilities, facilities for 26 the dependent and facilities which are otherwise required by the 27 regulations adopted by the Board pursuant to NRS 449.0303 to be 28 licensed concerning cultural competency and sensitivity in issues 29 relating to lesbian, gay, bisexual and transgender persons. 30 (f) Any other regulations as it deems necessary or convenient to 31 carry out the provisions of NRS 449.029 to 449.2428, inclusive [.] , 32 and sections 2 and 3 of this act. 33 2. The Board shall adopt separate regulations governing the 34 licensing and operation of: 35 (a) Facilities for the care of adults during the day; and 36 (b) Residential facilities for groups, 37  which provide care to persons with Alzheimer’s disease. 38 3. The Board shall adopt separate regulations for: 39 (a) The licensure of rural hospitals which take into consideration 40 the unique problems of operating such a facility in a rural area. 41 (b) The licensure of facilities for refractive surgery which take 42 into consideration the unique factors of operating such a facility. 43 – 6 – - *SB364* (c) The licensure of mobile units which take into consideration 1 the unique factors of operating a facility that is not in a fixed 2 location. 3 4. The Board shall require that the practices and policies of 4 each medical facility or facility for the dependent provide 5 adequately for the protection of the health, safety and physical, 6 moral and mental well-being of each person accommodated in the 7 facility. 8 5. In addition to the training requirements prescribed pursuant 9 to NRS 449.093, the Board shall establish minimum qualifications 10 for administrators and employees of residential facilities for groups. 11 In establishing the qualifications, the Board shall consider the 12 related standards set by nationally recognized organizations which 13 accredit such facilities. 14 6. The Board shall adopt separate regulations regarding the 15 assistance which may be given pursuant to NRS 453.375 and 16 454.213 to an ultimate user of controlled substances or dangerous 17 drugs by employees of residential facilities for groups. The 18 regulations must require at least the following conditions before 19 such assistance may be given: 20 (a) The ultimate user’s physical and mental condition is stable 21 and is following a predictable course. 22 (b) The amount of the medication prescribed is at a maintenance 23 level and does not require a daily assessment. 24 (c) A written plan of care by a physician or registered nurse has 25 been established that: 26 (1) Addresses possession and assistance in the administration 27 of the medication; and 28 (2) Includes a plan, which has been prepared under the 29 supervision of a registered nurse or licensed pharmacist, for 30 emergency intervention if an adverse condition results. 31 (d) Except as otherwise authorized by the regulations adopted 32 pursuant to NRS 449.0304, the prescribed medication is not 33 administered by injection or intravenously. 34 (e) The employee has successfully completed training and 35 examination approved by the Division regarding the authorized 36 manner of assistance. 37 7. The Board shall adopt separate regulations governing the 38 licensing and operation of residential facilities for groups which 39 provide assisted living services. The Board shall not allow the 40 licensing of a facility as a residential facility for groups which 41 provides assisted living services and a residential facility for groups 42 shall not claim that it provides “assisted living services” unless: 43 (a) Before authorizing a person to move into the facility, the 44 facility makes a full written disclosure to the person regarding what 45 – 7 – - *SB364* services of personalized care will be available to the person and the 1 amount that will be charged for those services throughout the 2 resident’s stay at the facility. 3 (b) The residents of the facility reside in their own living units 4 which: 5 (1) Except as otherwise provided in subsection 8, contain 6 toilet facilities; 7 (2) Contain a sleeping area or bedroom; and 8 (3) Are shared with another occupant only upon consent of 9 both occupants. 10 (c) The facility provides personalized care to the residents of the 11 facility and the general approach to operating the facility 12 incorporates these core principles: 13 (1) The facility is designed to create a residential 14 environment that actively supports and promotes each resident’s 15 quality of life and right to privacy; 16 (2) The facility is committed to offering high-quality 17 supportive services that are developed by the facility in 18 collaboration with the resident to meet the resident’s individual 19 needs; 20 (3) The facility provides a variety of creative and innovative 21 services that emphasize the particular needs of each individual 22 resident and the resident’s personal choice of lifestyle; 23 (4) The operation of the facility and its interaction with its 24 residents supports, to the maximum extent possible, each resident’s 25 need for autonomy and the right to make decisions regarding his or 26 her own life; 27 (5) The operation of the facility is designed to foster a social 28 climate that allows the resident to develop and maintain personal 29 relationships with fellow residents and with persons in the general 30 community; 31 (6) The facility is designed to minimize and is operated in a 32 manner which minimizes the need for its residents to move out of 33 the facility as their respective physical and mental conditions change 34 over time; and 35 (7) The facility is operated in such a manner as to foster a 36 culture that provides a high-quality environment for the residents, 37 their families, the staff, any volunteers and the community at large. 38 8. The Division may grant an exception from the requirement 39 of subparagraph (1) of paragraph (b) of subsection 7 to a facility 40 which is licensed as a residential facility for groups on or before 41 July 1, 2005, and which is authorized to have 10 or fewer beds and 42 was originally constructed as a single-family dwelling if the 43 Division finds that: 44 – 8 – - *SB364* (a) Strict application of that requirement would result in 1 economic hardship to the facility requesting the exception; and 2 (b) The exception, if granted, would not: 3 (1) Cause substantial detriment to the health or welfare of 4 any resident of the facility; 5 (2) Result in more than two residents sharing a toilet facility; 6 or 7 (3) Otherwise impair substantially the purpose of that 8 requirement. 9 9. The Board shall, if it determines necessary, adopt 10 regulations and requirements to ensure that each residential facility 11 for groups and its staff are prepared to respond to an emergency, 12 including, without limitation: 13 (a) The adoption of plans to respond to a natural disaster and 14 other types of emergency situations, including, without limitation, 15 an emergency involving fire; 16 (b) The adoption of plans to provide for the evacuation of a 17 residential facility for groups in an emergency, including, without 18 limitation, plans to ensure that nonambulatory patients may be 19 evacuated; 20 (c) Educating the residents of residential facilities for groups 21 concerning the plans adopted pursuant to paragraphs (a) and (b); and 22 (d) Posting the plans or a summary of the plans adopted 23 pursuant to paragraphs (a) and (b) in a conspicuous place in each 24 residential facility for groups. 25 10. The regulations governing the licensing and operation of 26 facilities for transitional living for released offenders must provide 27 for the licensure of at least three different types of facilities, 28 including, without limitation: 29 (a) Facilities that only provide a housing and living 30 environment; 31 (b) Facilities that provide or arrange for the provision of 32 supportive services for residents of the facility to assist the residents 33 with reintegration into the community, in addition to providing a 34 housing and living environment; and 35 (c) Facilities that provide or arrange for the provision of alcohol 36 and drug abuse programs, in addition to providing a housing and 37 living environment and providing or arranging for the provision of 38 other supportive services. 39  The regulations must provide that if a facility was originally 40 constructed as a single-family dwelling, the facility must not be 41 authorized for more than eight beds. 42 11. As used in this section, “living unit” means an individual 43 private accommodation designated for a resident within the facility. 44 – 9 – - *SB364* Sec. 7. NRS 449.160 is hereby amended to read as follows: 1 449.160 1. The Division may deny an application for a 2 license or may suspend or revoke any license issued under the 3 provisions of NRS 449.029 to 449.2428, inclusive, and sections 2 4 and 3 of this act upon any of the following grounds: 5 (a) Violation by the applicant or the licensee of any of the 6 provisions of NRS 439B.410 or 449.029 to 449.245, inclusive, and 7 sections 2 and 3 of this act, or of any other law of this State or of 8 the standards, rules and regulations adopted thereunder. 9 (b) Aiding, abetting or permitting the commission of any illegal 10 act. 11 (c) Conduct inimical to the public health, morals, welfare and 12 safety of the people of the State of Nevada in the maintenance and 13 operation of the premises for which a license is issued. 14 (d) Conduct or practice detrimental to the health or safety of the 15 occupants or employees of the facility. 16 (e) Failure of the applicant to obtain written approval from the 17 Director of the Department of Health and Human Services as 18 required by NRS 439A.100 or as provided in any regulation adopted 19 pursuant to NRS 449.001 to 449.430, inclusive, and sections 2 and 20 3 of this act, and 449.435 to 449.531, inclusive, and chapter 449A 21 of NRS if such approval is required. 22 (f) Failure to comply with the provisions of NRS 449.2486. 23 2. In addition to the provisions of subsection 1, the Division 24 may revoke a license to operate a facility for the dependent if, with 25 respect to that facility, the licensee that operates the facility, or an 26 agent or employee of the licensee: 27 (a) Is convicted of violating any of the provisions of 28 NRS 202.470; 29 (b) Is ordered to but fails to abate a nuisance pursuant to NRS 30 244.360, 244.3603 or 268.4124; or 31 (c) Is ordered by the appropriate governmental agency to correct 32 a violation of a building, safety or health code or regulation but fails 33 to correct the violation. 34 3. The Division shall maintain a log of any complaints that it 35 receives relating to activities for which the Division may revoke the 36 license to operate a facility for the dependent pursuant to subsection 37 2. The Division shall provide to a facility for the care of adults 38 during the day: 39 (a) A summary of a complaint against the facility if the 40 investigation of the complaint by the Division either substantiates 41 the complaint or is inconclusive; 42 (b) A report of any investigation conducted with respect to the 43 complaint; and 44 (c) A report of any disciplinary action taken against the facility. 45 – 10 – - *SB364*  The facility shall make the information available to the public 1 pursuant to NRS 449.2486. 2 4. On or before February 1 of each odd-numbered year, the 3 Division shall submit to the Director of the Legislative Counsel 4 Bureau a written report setting forth, for the previous biennium: 5 (a) Any complaints included in the log maintained by the 6 Division pursuant to subsection 3; and 7 (b) Any disciplinary actions taken by the Division pursuant to 8 subsection 2. 9 Sec. 8. NRS 449.163 is hereby amended to read as follows: 10 449.163 1. In addition to the payment of the amount required 11 by NRS 449.0308, if a medical facility, facility for the dependent or 12 facility which is required by the regulations adopted by the Board 13 pursuant to NRS 449.0303 to be licensed violates any provision 14 related to its licensure, including any provision of NRS 439B.410 or 15 449.029 to 449.2428, inclusive, and sections 2 and 3 of this act or 16 any condition, standard or regulation adopted by the Board, the 17 Division, in accordance with the regulations adopted pursuant to 18 NRS 449.165, may: 19 (a) Prohibit the facility from admitting any patient until it 20 determines that the facility has corrected the violation; 21 (b) Limit the occupancy of the facility to the number of beds 22 occupied when the violation occurred, until it determines that the 23 facility has corrected the violation; 24 (c) If the license of the facility limits the occupancy of the 25 facility and the facility has exceeded the approved occupancy, 26 require the facility, at its own expense, to move patients to another 27 facility that is licensed; 28 (d) Impose an administrative penalty of not more than $5,000 29 per day for each violation, together with interest thereon at a rate not 30 to exceed 10 percent per annum; and 31 (e) Appoint temporary management to oversee the operation of 32 the facility and to ensure the health and safety of the patients of the 33 facility, until: 34 (1) It determines that the facility has corrected the violation 35 and has management which is capable of ensuring continued 36 compliance with the applicable statutes, conditions, standards and 37 regulations; or 38 (2) Improvements are made to correct the violation. 39 2. If the facility fails to pay any administrative penalty imposed 40 pursuant to paragraph (d) of subsection 1, the Division may: 41 (a) Suspend the license of the facility until the administrative 42 penalty is paid; and 43 (b) Collect court costs, reasonable attorney’s fees and other 44 costs incurred to collect the administrative penalty. 45 – 11 – - *SB364* 3. The Division may require any facility that violates any 1 provision of NRS 439B.410 or 449.029 to 449.2428, inclusive, and 2 sections 2 and 3 of this act or any condition, standard or regulation 3 adopted by the Board to make any improvements necessary to 4 correct the violation. 5 4. Any money collected as administrative penalties pursuant to 6 paragraph (d) of subsection 1 must be accounted for separately and 7 used to administer and carry out the provisions of NRS 449.001 to 8 449.430, inclusive, and sections 2 and 3 of this act, 449.435 to 9 449.530, inclusive, and 449.760 and chapter 449A of NRS to protect 10 the health, safety, well-being and property of the patients and 11 residents of facilities in accordance with applicable state and federal 12 standards or for any other purpose authorized by the Legislature. 13 Sec. 9. NRS 449.240 is hereby amended to read as follows: 14 449.240 The district attorney of the county in which the facility 15 is located shall, upon application by the Division, institute and 16 conduct the prosecution of any action for violation of any provisions 17 of NRS 449.029 to 449.245, inclusive [.] , and sections 2 and 3 of 18 this act. 19 Sec. 10. NRS 654.190 is hereby amended to read as follows: 20 654.190 1. The Board may, after notice and an opportunity 21 for a hearing as required by law, impose an administrative fine of 22 not more than $10,000 for each violation on, recover reasonable 23 investigative fees and costs incurred from, suspend, revoke, deny 24 the issuance or renewal of or place conditions on the license of, and 25 place on probation or impose any combination of the foregoing on 26 any licensee who: 27 (a) Is convicted of a felony relating to the practice of 28 administering a nursing facility or residential facility or of any 29 offense involving moral turpitude. 30 (b) Has obtained his or her license by the use of fraud or deceit. 31 (c) Violates any of the provisions of this chapter. 32 (d) Aids or abets any person in the violation of any of the 33 provisions of NRS 449.029 to 449.2428, inclusive, and sections 2 34 and 3 of this act as those provisions pertain to a facility for skilled 35 nursing, facility for intermediate care or residential facility for 36 groups. 37 (e) Violates any regulation of the Board prescribing additional 38 standards of conduct for licensees, including, without limitation, a 39 code of ethics. 40 (f) Engages in conduct that violates the trust of a patient or 41 resident or exploits the relationship between the licensee and the 42 patient or resident for the financial or other gain of the licensee. 43 2. If a licensee requests a hearing pursuant to subsection 1, the 44 Board shall give the licensee written notice of a hearing pursuant to 45 – 12 – - *SB364* NRS 233B.121 and 241.034. A licensee may waive, in writing, his 1 or her right to attend the hearing. 2 3. The Board may compel the attendance of witnesses or the 3 production of documents or objects by subpoena. The Board may 4 adopt regulations that set forth a procedure pursuant to which the 5 Chair of the Board may issue subpoenas on behalf of the Board. 6 Any person who is subpoenaed pursuant to this subsection may 7 request the Board to modify the terms of the subpoena or grant 8 additional time for compliance. 9 4. An order that imposes discipline and the findings of fact and 10 conclusions of law supporting that order are public records. 11 5. The expiration of a license by operation of law or by order 12 or decision of the Board or a court, or the voluntary surrender of a 13 license, does not deprive the Board of jurisdiction to proceed with 14 any investigation of, or action or disciplinary proceeding against, the 15 licensee or to render a decision suspending or revoking the license. 16 Sec. 11. The Division of Public and Behavioral Health of the 17 Department of Health and Human Services shall review and revise 18 the regulations adopted pursuant to chapter 449 of NRS to ensure 19 that those regulations: 20 1. Do not conflict with the requirements of sections 2 and 3 of 21 act concerning prohibited bases for discrimination; and 22 2. Use currently accepted terminology that accounts for and 23 protects the rights of transgender persons and persons who do not 24 identify as either male or female. 25 Sec. 12. This act becomes effective: 26 1. Upon passage and approval for the purpose of adopting any 27 regulations and performing any other preparatory administrative 28 tasks that are necessary to carry out the provisions of this act; and 29 2. On January 1, 2020, for all other purposes. 30 H

80th Session (2019) Senate Bill No. 364–Senators Parks, Spearman; and Woodhouse Joint Sponsor: Assemblyman Carrillo CHAPTER.......... AN ACT relating to the protection of vulnerable persons; prohibiting a medical facility, facility for the dependent and certain other facilities from engaging in certain discriminatory actions; requiring employees and agents of such facilities to receive certain training relating to cultural competency; requiring such facilities to take certain measures to protect the privacy of persons receiving care from the facilities and adapt electronic records to reflect certain information concerning patients or residents; and providing other matters properly relating thereto. Legislative Counsel’s Digest: Existing law provides for the licensing and regulation of medical facilities, facilities for the dependent and certain other facilities by the Division of Public and Behavioral Health of the Department of Health and Human Services. (NRS 449.029-449.240) Section 2 of this bill prohibits such a facility from discriminating against a person based on the actual or perceived race, color, religion, national origin, ancestry, age, gender, physical or mental disability, sexual orientation, gender identity or expression or human immunodeficiency virus status of the person or a person with whom the person associates. Section 6 of this bill requires the State Board of Health to adopt regulations that prescribe the specific types of prohibited discrimination. Section 2 requires such a facility to post prominently in the facility and include on any marketing website: (1) a statement that a person who is discriminated against on prohibited grounds may file a complaint with the Division; and (2) the contact information for the Division. Section 2.5 of this bill requires the Board, by regulation, to require a medical facility, facility for the dependent and certain other facilities required by the Board to be licensed to conduct training relating specifically to cultural competency for any agent or employee of the facility who provides care to a patient or resident of the facility. Section 2.5 provides that such cultural competency training is required so that such an agent or employee may better understand patients or residents who have different cultural backgrounds, including patients who are: (1) from various gender, racial and ethnic backgrounds; (2) from various religious backgrounds; (3) lesbian, gay, bisexual, transgender and questioning persons; (4) children and senior citizens; (5) persons with a mental or physical disability; and (6) part of any other population, as determined by the Board. Section 2.5 requires such training to be provided through a course or program that is approved by the Department of Health and Human Services. Section 3 of this bill requires a medical facility, facility for the dependent and certain other facilities required by the Board to be licensed to take certain measures to protect the privacy of persons receiving care from the facility. Section 3.5 of this bill requires the Board to adopt regulations that require such a facility to develop policies to ensure that a patient or resident is addressed by his or her preferred name and pronoun and in accordance with his or her gender identity or expression. Section 3.5 also requires the facility to adapt electronic records to reflect the gender – 2 – 80th Session (2019) identities or expressions of gender diverse patients or residents and section 11 of this bill requires that to occur by July 1, 2021, unless an extension is approved by the Division of Public and Behavioral Health. Sections 4-10 of this bill make conforming changes. EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: Section 1. Chapter 449 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 3.5, inclusive, of this act. Sec. 2. 1. A medical facility, facility for the dependent or facility which is otherwise required by regulations adopted by the Board pursuant to NRS 449.0303 to be licensed and any employee or independent contractor of such a facility shall not discriminate in the admission of, or the provision of services to, a patient or resident based wholly or partially on the actual or perceived race, color, religion, national origin, ancestry, age, gender, physical or mental disability, sexual orientation, gender identity or expression or human immunodeficiency virus status of the patient or resident or any person with whom the patient or resident associates. 2. A medical facility, facility for the dependent or facility which is otherwise required by regulations adopted by the Board pursuant to NRS 449.0303 to be licensed shall: (a) Develop and carry out policies to prevent the specific types of prohibited discrimination described in the regulations adopted by the Board pursuant to NRS 449.0302 and meet any other requirements prescribed by regulations of the Board; and (b) Post prominently in the facility and include on any Internet website used to market the facility the following statement: [Name of facility] does not discriminate and does not permit discrimination, including, without limitation, bullying, abuse or harassment, on the basis of actual or perceived race, color, religion, national origin, ancestry, age, gender, physical or mental disability, sexual orientation, gender identity or expression or HIV status, or based on association with another person on account of that person’s actual or perceived race, color, religion, national origin, ancestry, age, gender, physical or mental disability, sexual orientation, gender identity or expression or HIV status. – 3 – 80th Session (2019) 3. In addition to the statement prescribed by subsection 2, a facility for skilled nursing, facility for intermediate care or residential facility for groups shall post prominently in the facility and include on any Internet website used to market the facility: (a) Notice that a patient or resident who has experienced prohibited discrimination may file a complaint with the Division; and (b) The contact information for the Division. 4. The provisions of this section shall not be construed to: (a) Require a medical facility, facility for the dependent or facility which is otherwise required by regulations adopted by the Board pursuant to NRS 449.0303 to be licensed or an employee or independent contractor thereof to take or refrain from taking any action in violation of reasonable medical standards; or (b) Prohibit a medical facility, facility for the dependent or facility which is otherwise required by regulations adopted by the Board pursuant to NRS 449.0303 to be licensed from adopting a policy that is applied uniformly and in a nondiscriminatory manner, including, without limitation, such a policy that bans or restricts sexual relations. Sec. 2.5. 1. To enable an agent or employee of a medical facility, facility for the dependent or facility which is otherwise required by regulations adopted by the Board pursuant to NRS 449.0303 to be licensed who provides care to a patient or resident of the facility to more effectively treat patients or care for residents, as applicable, the Board shall, by regulation, require such a facility to conduct training relating specifically to cultural competency for any agent or employee of the facility who provides care to a patient or resident of the facility so that such an agent or employee may better understand patients or residents who have different cultural backgrounds, including, without limitation, patients or residents who are: (a) From various gender, racial and ethnic backgrounds; (b) From various religious backgrounds; (c) Lesbian, gay, bisexual, transgender and questioning persons; (d) Children and senior citizens; (e) Persons with a mental or physical disability; and (f) Part of any other population that such an agent or employee may need to better understand, as determined by the Board. 2. The training relating specifically to cultural competency conducted by a medical facility, facility for the dependent or – 4 – 80th Session (2019) facility which is otherwise required by regulations adopted by the Board pursuant to NRS 449.0303 to be licensed pursuant to subsection 1 must be provided through a course or program that is approved by the Department of Health and Human Services. Sec. 3. A medical facility, facility for the dependent or facility which is otherwise required by regulations adopted by the Board pursuant to NRS 449.0303 to be licensed shall: 1. Maintain the confidentiality of personally identifiable information concerning the sexual orientation of a patient or resident, whether the patient or resident is transgender or has undergone a gender transition and the human immunodeficiency virus status of the patient or resident and take reasonable actions to prevent the unauthorized disclosure of such information; 2. Prohibit employees or independent contractors of the facility who are not performing a physical examination or directly providing care to a patient or resident from being present during any portion of the physical examination or care, as applicable, during which the patient or resident is fully or partially unclothed without the express permission of the patient or resident or the authorized representative of the patient or resident; 3. Use visual barriers, including, without limitation, doors, curtains and screens, to provide privacy for patients or residents who are fully or partially unclothed; and 4. Allow a patient or resident to refuse to be examined, observed or treated by an employee or independent contractor of the facility for a purpose that is primarily educational rather than therapeutic. Sec. 3.5. The Board shall adopt regulations that require a medical facility, facility for the dependent or facility which is otherwise required by regulations adopted by the Board pursuant to NRS 449.0303 to be licensed to: 1. Develop policies to ensure that a patient or resident is addressed by his or her preferred name and pronoun and in accordance with his or her gender identity or expression; 2. Adapt electronic records to reflect the gender identities or expressions of patients or residents with diverse gender identities or expressions, including, without limitation: (a) If the facility is a medical facility, adapting health records to meet the medical needs of patients or residents with diverse sexual orientations and gender identities or expressions, including, without limitation, integrating information concerning sexual orientation and gender identity or expression into electronic systems for maintaining health records; and – 5 – 80th Session (2019) (b) If the facility is a facility for the dependent or other residential facility, adapting electronic records to include: (1) The preferred name and pronoun and gender identity or expression of a resident; and (2) Any other information prescribed by regulation of the Board. Sec. 4. NRS 449.029 is hereby amended to read as follows: 449.029 As used in NRS 449.029 to 449.240, inclusive, and sections 2 to 3.5, inclusive, of this act, unless the context otherwise requires, “medical facility” has the meaning ascribed to it in NRS 449.0151 and includes a program of hospice care described in NRS 449.196. Sec. 5. NRS 449.0301 is hereby amended to read as follows: 449.0301 The provisions of NRS 449.029 to 449.2428, inclusive, and sections 2 to 3.5, inclusive, of this act do not apply to: 1. Any facility conducted by and for the adherents of any church or religious denomination for the purpose of providing facilities for the care and treatment of the sick who depend solely upon spiritual means through prayer for healing in the practice of the religion of the church or denomination, except that such a facility shall comply with all regulations relative to sanitation and safety applicable to other facilities of a similar category. 2. Foster homes as defined in NRS 424.014. 3. Any medical facility, facility for the dependent or facility which is otherwise required by the regulations adopted by the Board pursuant to NRS 449.0303 to be licensed that is operated and maintained by the United States Government or an agency thereof. Sec. 6. NRS 449.0302 is hereby amended to read as follows: 449.0302 1. The Board shall adopt: (a) Licensing standards for each class of medical facility or facility for the dependent covered by NRS 449.029 to 449.2428, inclusive, and sections 2 to 3.5, inclusive, of this act and for programs of hospice care. (b) Regulations governing the licensing of such facilities and programs. (c) Regulations governing the procedure and standards for granting an extension of the time for which a natural person may provide certain care in his or her home without being considered a residential facility for groups pursuant to NRS 449.017. The regulations must require that such grants are effective only if made in writing. – 6 – 80th Session (2019) (d) Regulations establishing a procedure for the indemnification by the Division, from the amount of any surety bond or other obligation filed or deposited by a facility for refractive surgery pursuant to NRS 449.068 or 449.069, of a patient of the facility who has sustained any damages as a result of the bankruptcy of or any breach of contract by the facility. (e) Regulations that prescribe the specific types of discrimination prohibited by section 2 of this act. (f) Any other regulations as it deems necessary or convenient to carry out the provisions of NRS 449.029 to 449.2428, inclusive [.] , and sections 2 to 3.5, inclusive, of this act. 2. The Board shall adopt separate regulations governing the licensing and operation of: (a) Facilities for the care of adults during the day; and (b) Residential facilities for groups,  which provide care to persons with Alzheimer’s disease. 3. The Board shall adopt separate regulations for: (a) The licensure of rural hospitals which take into consideration the unique problems of operating such a facility in a rural area. (b) The licensure of facilities for refractive surgery which take into consideration the unique factors of operating such a facility. (c) The licensure of mobile units which take into consideration the unique factors of operating a facility that is not in a fixed location. 4. The Board shall require that the practices and policies of each medical facility or facility for the dependent provide adequately for the protection of the health, safety and physical, moral and mental well-being of each person accommodated in the facility. 5. In addition to the training requirements prescribed pursuant to NRS 449.093, the Board shall establish minimum qualifications for administrators and employees of residential facilities for groups. In establishing the qualifications, the Board shall consider the related standards set by nationally recognized organizations which accredit such facilities. 6. The Board shall adopt separate regulations regarding the assistance which may be given pursuant to NRS 453.375 and 454.213 to an ultimate user of controlled substances or dangerous drugs by employees of residential facilities for groups. The regulations must require at least the following conditions before such assistance may be given: (a) The ultimate user’s physical and mental condition is stable and is following a predictable course. – 7 – 80th Session (2019) (b) The amount of the medication prescribed is at a maintenance level and does not require a daily assessment. (c) A written plan of care by a physician or registered nurse has been established that: (1) Addresses possession and assistance in the administration of the medication; and (2) Includes a plan, which has been prepared under the supervision of a registered nurse or licensed pharmacist, for emergency intervention if an adverse condition results. (d) Except as otherwise authorized by the regulations adopted pursuant to NRS 449.0304, the prescribed medication is not administered by injection or intravenously. (e) The employee has successfully completed training and examination approved by the Division regarding the authorized manner of assistance. 7. The Board shall adopt separate regulations governing the licensing and operation of residential facilities for groups which provide assisted living services. The Board shall not allow the licensing of a facility as a residential facility for groups which provides assisted living services and a residential facility for groups shall not claim that it provides “assisted living services” unless: (a) Before authorizing a person to move into the facility, the facility makes a full written disclosure to the person regarding what services of personalized care will be available to the person and the amount that will be charged for those services throughout the resident’s stay at the facility. (b) The residents of the facility reside in their own living units which: (1) Except as otherwise provided in subsection 8, contain toilet facilities; (2) Contain a sleeping area or bedroom; and (3) Are shared with another occupant only upon consent of both occupants. (c) The facility provides personalized care to the residents of the facility and the general approach to operating the facility incorporates these core principles: (1) The facility is designed to create a residential environment that actively supports and promotes each resident’s quality of life and right to privacy; (2) The facility is committed to offering high-quality supportive services that are developed by the facility in collaboration with the resident to meet the resident’s individual needs; – 8 – 80th Session (2019) (3) The facility provides a variety of creative and innovative services that emphasize the particular needs of each individual resident and the resident’s personal choice of lifestyle; (4) The operation of the facility and its interaction with its residents supports, to the maximum extent possible, each resident’s need for autonomy and the right to make decisions regarding his or her own life; (5) The operation of the facility is designed to foster a social climate that allows the resident to develop and maintain personal relationships with fellow residents and with persons in the general community; (6) The facility is designed to minimize and is operated in a manner which minimizes the need for its residents to move out of the facility as their respective physical and mental conditions change over time; and (7) The facility is operated in such a manner as to foster a culture that provides a high-quality environment for the residents, their families, the staff, any volunteers and the community at large. 8. The Division may grant an exception from the requirement of subparagraph (1) of paragraph (b) of subsection 7 to a facility which is licensed as a residential facility for groups on or before July 1, 2005, and which is authorized to have 10 or fewer beds and was originally constructed as a single-family dwelling if the Division finds that: (a) Strict application of that requirement would result in economic hardship to the facility requesting the exception; and (b) The exception, if granted, would not: (1) Cause substantial detriment to the health or welfare of any resident of the facility; (2) Result in more than two residents sharing a toilet facility; or (3) Otherwise impair substantially the purpose of that requirement. 9. The Board shall, if it determines necessary, adopt regulations and requirements to ensure that each residential facility for groups and its staff are prepared to respond to an emergency, including, without limitation: (a) The adoption of plans to respond to a natural disaster and other types of emergency situations, including, without limitation, an emergency involving fire; (b) The adoption of plans to provide for the evacuation of a residential facility for groups in an emergency, including, without – 9 – 80th Session (2019) limitation, plans to ensure that nonambulatory patients may be evacuated; (c) Educating the residents of residential facilities for groups concerning the plans adopted pursuant to paragraphs (a) and (b); and (d) Posting the plans or a summary of the plans adopted pursuant to paragraphs (a) and (b) in a conspicuous place in each residential facility for groups. 10. The regulations governing the licensing and operation of facilities for transitional living for released offenders must provide for the licensure of at least three different types of facilities, including, without limitation: (a) Facilities that only provide a housing and living environment; (b) Facilities that provide or arrange for the provision of supportive services for residents of the facility to assist the residents with reintegration into the community, in addition to providing a housing and living environment; and (c) Facilities that provide or arrange for the provision of alcohol and drug abuse programs, in addition to providing a housing and living environment and providing or arranging for the provision of other supportive services.  The regulations must provide that if a facility was originally constructed as a single-family dwelling, the facility must not be authorized for more than eight beds. 11. As used in this section, “living unit” means an individual private accommodation designated for a resident within the facility. Sec. 7. NRS 449.160 is hereby amended to read as follows: 449.160 1. The Division may deny an application for a license or may suspend or revoke any license issued under the provisions of NRS 449.029 to 449.2428, inclusive, and sections 2 to 3.5, inclusive, of this act upon any of the following grounds: (a) Violation by the applicant or the licensee of any of the provisions of NRS 439B.410 or 449.029 to 449.245, inclusive, and sections 2 to 3.5, inclusive, of this act, or of any other law of this State or of the standards, rules and regulations adopted thereunder. (b) Aiding, abetting or permitting the commission of any illegal act. (c) Conduct inimical to the public health, morals, welfare and safety of the people of the State of Nevada in the maintenance and operation of the premises for which a license is issued. (d) Conduct or practice detrimental to the health or safety of the occupants or employees of the facility. – 10 – 80th Session (2019) (e) Failure of the applicant to obtain written approval from the Director of the Department of Health and Human Services as required by NRS 439A.100 or as provided in any regulation adopted pursuant to NRS 449.001 to 449.430, inclusive, and sections 2 to 3.5, inclusive, of this act, and 449.435 to 449.531, inclusive, and chapter 449A of NRS if such approval is required. (f) Failure to comply with the provisions of NRS 449.2486. 2. In addition to the provisions of subsection 1, the Division may revoke a license to operate a facility for the dependent if, with respect to that facility, the licensee that operates the facility, or an agent or employee of the licensee: (a) Is convicted of violating any of the provisions of NRS 202.470; (b) Is ordered to but fails to abate a nuisance pursuant to NRS 244.360, 244.3603 or 268.4124; or (c) Is ordered by the appropriate governmental agency to correct a violation of a building, safety or health code or regulation but fails to correct the violation. 3. The Division shall maintain a log of any complaints that it receives relating to activities for which the Division may revoke the license to operate a facility for the dependent pursuant to subsection 2. The Division shall provide to a facility for the care of adults during the day: (a) A summary of a complaint against the facility if the investigation of the complaint by the Division either substantiates the complaint or is inconclusive; (b) A report of any investigation conducted with respect to the complaint; and (c) A report of any disciplinary action taken against the facility.  The facility shall make the information available to the public pursuant to NRS 449.2486. 4. On or before February 1 of each odd-numbered year, the Division shall submit to the Director of the Legislative Counsel Bureau a written report setting forth, for the previous biennium: (a) Any complaints included in the log maintained by the Division pursuant to subsection 3; and (b) Any disciplinary actions taken by the Division pursuant to subsection 2. Sec. 8. NRS 449.163 is hereby amended to read as follows: 449.163 1. In addition to the payment of the amount required by NRS 449.0308, if a medical facility, facility for the dependent or facility which is required by the regulations adopted by the Board pursuant to NRS 449.0303 to be licensed violates any provision – 11 – 80th Session (2019) related to its licensure, including any provision of NRS 439B.410 or 449.029 to 449.2428, inclusive, and sections 2 to 3.5, inclusive, of this act or any condition, standard or regulation adopted by the Board, the Division, in accordance with the regulations adopted pursuant to NRS 449.165, may: (a) Prohibit the facility from admitting any patient until it determines that the facility has corrected the violation; (b) Limit the occupancy of the facility to the number of beds occupied when the violation occurred, until it determines that the facility has corrected the violation; (c) If the license of the facility limits the occupancy of the facility and the facility has exceeded the approved occupancy, require the facility, at its own expense, to move patients to another facility that is licensed; (d) Impose an administrative penalty of not more than $5,000 per day for each violation, together with interest thereon at a rate not to exceed 10 percent per annum; and (e) Appoint temporary management to oversee the operation of the facility and to ensure the health and safety of the patients of the facility, until: (1) It determines that the facility has corrected the violation and has management which is capable of ensuring continued compliance with the applicable statutes, conditions, standards and regulations; or (2) Improvements are made to correct the violation. 2. If the facility fails to pay any administrative penalty imposed pursuant to paragraph (d) of subsection 1, the Division may: (a) Suspend the license of the facility until the administrative penalty is paid; and (b) Collect court costs, reasonable attorney’s fees and other costs incurred to collect the administrative penalty. 3. The Division may require any facility that violates any provision of NRS 439B.410 or 449.029 to 449.2428, inclusive, and sections 2 to 3.5, inclusive, of this act or any condition, standard or regulation adopted by the Board to make any improvements necessary to correct the violation. 4. Any money collected as administrative penalties pursuant to paragraph (d) of subsection 1 must be accounted for separately and used to administer and carry out the provisions of NRS 449.001 to 449.430, inclusive, and sections 2 to 3.5, inclusive, of this act, 449.435 to 449.531, inclusive, and chapter 449A of NRS to protect the health, safety, well-being and property of the patients and – 12 – 80th Session (2019) residents of facilities in accordance with applicable state and federal standards or for any other purpose authorized by the Legislature. Sec. 9. NRS 449.240 is hereby amended to read as follows: 449.240 The district attorney of the county in which the facility is located shall, upon application by the Division, institute and conduct the prosecution of any action for violation of any provisions of NRS 449.029 to 449.245, inclusive [.] , and sections 2 to 3.5, inclusive, of this act. Sec. 10. NRS 654.190 is hereby amended to read as follows: 654.190 1. The Board may, after notice and an opportunity for a hearing as required by law, impose an administrative fine of not more than $10,000 for each violation on, recover reasonable investigative fees and costs incurred from, suspend, revoke, deny the issuance or renewal of or place conditions on the license of, and place on probation or impose any combination of the foregoing on any licensee who: (a) Is convicted of a felony relating to the practice of administering a nursing facility or residential facility or of any offense involving moral turpitude. (b) Has obtained his or her license by the use of fraud or deceit. (c) Violates any of the provisions of this chapter. (d) Aids or abets any person in the violation of any of the provisions of NRS 449.029 to 449.2428, inclusive, and sections 2 to 3.5, inclusive, of this act as those provisions pertain to a facility for skilled nursing, facility for intermediate care or residential facility for groups. (e) Violates any regulation of the Board prescribing additional standards of conduct for licensees, including, without limitation, a code of ethics. (f) Engages in conduct that violates the trust of a patient or resident or exploits the relationship between the licensee and the patient or resident for the financial or other gain of the licensee. 2. If a licensee requests a hearing pursuant to subsection 1, the Board shall give the licensee written notice of a hearing pursuant to NRS 233B.121 and 241.034. A licensee may waive, in writing, his or her right to attend the hearing. 3. The Board may compel the attendance of witnesses or the production of documents or objects by subpoena. The Board may adopt regulations that set forth a procedure pursuant to which the Chair of the Board may issue subpoenas on behalf of the Board. Any person who is subpoenaed pursuant to this subsection may request the Board to modify the terms of the subpoena or grant additional time for compliance. – 13 – 80th Session (2019) 4. An order that imposes discipline and the findings of fact and conclusions of law supporting that order are public records. 5. The expiration of a license by operation of law or by order or decision of the Board or a court, or the voluntary surrender of a license, does not deprive the Board of jurisdiction to proceed with any investigation of, or action or disciplinary proceeding against, the licensee or to render a decision suspending or revoking the license. Sec. 11. 1. The Division of Public and Behavioral Health of the Department of Health and Human Services shall review and revise the regulations adopted pursuant to chapter 449 of NRS to ensure that those regulations: (a) Do not conflict with the requirements of sections 2 to 3.5, inclusive, of this act concerning prohibited bases for discrimination; and (b) Use currently accepted terminology that accounts for and protects the rights of transgender persons and persons who do not identify as either male or female. 2. The State Board of Health shall adopt the regulations described in subsection 2 of section 3.5 of this act on or before July 1, 2020. 3. Except as otherwise provided in this subsection, a medical facility, facility for the dependent or facility which is otherwise required by regulations adopted by the Board pursuant to NRS 449.0303 to be licensed must comply with the regulations adopted pursuant to subsection 2 of section 3.5 of this act on or before July 1, 2021. Such a facility may request from the Division of Public and Behavioral Health of the Department of Health and Human Services an extension of the deadline prescribed by this subsection. The Division may grant such a request upon a showing of good cause. Sec. 12. This act becomes effective: 1. Upon passage and approval for the purpose of adopting any regulations and performing any other preparatory administrative tasks that are necessary to carry out the provisions of this act; and 2. On January 1, 2020, for all other purposes. 20 ~~~~~ 19