Text of NY A 372 (2023)

STATE OF NEW YORK ________________________________________________________________________ 372 2023-2024 Regular Sessions IN ASSEMBLY January 6, 2023 ___________ Introduced by M. of A. BRONSON, SEAWRIGHT, DINOWITZ, GLICK -- read once and referred to the Committee on Aging 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. 20 2. "Gender-nonconforming" shall mean a person whose gender expression 21 does not conform to stereotypical expectations of how a man or woman 22 should appear or act. 23 3. "LGBT" shall mean lesbian, gay, bisexual, or transgender. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01718-01-3 A. 372 2 1 4. "Long-term care facilities" or "facilities" shall mean residential 2 health care facilities as defined in subdivision three of section twen- 3 ty-eight hundred one of this chapter, adult care facilities as defined 4 in subdivision twenty-one of section two of the social services law, and 5 assisted living residences, as defined in article forty-six-B of this 6 chapter, or any facilities which hold themselves out or advertise them- 7 selves as providing assisted living services and which are required to 8 be licensed or certified under the social services law or this chapter. 9 5. "Long-term care facility staff" or "facility staff" shall mean all 10 individuals employed by or contracted directly with the facility. 11 6. "Resident" shall mean a resident or patient of a long-term care 12 facility. 13 7. "Transition" shall mean to undergo a process by which a person 14 changes physical sex characteristics or gender expression to match the 15 person's inner sense of being male or female. This process may include, 16 among other things, a name change, a change in preferred pronouns, and a 17 change in social gender expression, as indicated by hairstyle, clothing, 18 and restroom use. Transition may or may not include hormone use and 19 surgery. 20 § 4671. Unlawful actions. 1. Except as provided in subdivision two of 21 this section, it shall be unlawful for a long-term care facility or 22 facility staff to take any of the following actions wholly or partially 23 for a discriminatory reason on the basis of a person's actual or 24 perceived sexual orientation, gender identity or expression, or human 25 immunodeficiency virus (HIV) status: 26 (a) deny admission to a long-term care facility, transfer or refuse to 27 transfer a resident within a facility or to another facility, or 28 discharge or evict a resident from a facility; 29 (b) deny a request by residents to share a room; 30 (c) where rooms are assigned by gender, assigning, reassigning or 31 refusing to assign a room to a transgender resident other than in 32 accordance with the transgender resident's gender identity, unless at 33 the transgender resident's request; 34 (d) prohibit a resident from using, or harass a resident who seeks to 35 use or does use, a restroom available to other persons of the same 36 gender identity, regardless of whether the resident has taken or is 37 taking hormones, has had transition-related surgery, or is making a 38 gender transition or appears to be gender-nonconforming. Harassment 39 includes, but is not limited to, requiring a resident to show identity 40 documents in order to gain entrance to a restroom available to other 41 persons of the same gender identity; 42 (e) willfully and repeatedly fail to use a resident's preferred name 43 or pronouns after being clearly informed of the preferred name or 44 pronouns, even if the resident is not present; 45 (f) deny a resident the right to wear or be dressed in clothing, 46 accessories, or cosmetics that are permitted for any other resident; 47 (g) restrict a resident's right to associate with other residents or 48 with visitors, including the right to consensual expression of intimacy 49 or sexual relations, unless the restriction is uniformly applied to all 50 residents in a nondiscriminatory manner; and 51 (h) deny or restrict a resident from accessing appropriate medical or 52 nonmedical care, or provide medical or nonmedical care, that unreason- 53 ably demeans the resident's dignity or causes avoidable discomfort. 54 2. The provisions of this section shall not apply to the extent that 55 they are incompatible with any professionally reasonable clinical judg- 56 ment that is based on articulable facts of clinical significance. A. 372 3 1 3. Each facility shall post the following notice alongside its current 2 nondiscrimination policy in all places and on all materials where that 3 policy is posted: "(NAME OF FACILITY) DOES NOT DISCRIMINATE AND DOES 4 NOT PERMIT DISCRIMINATION, INCLUDING, BUT NOT LIMITED TO, BULLYING, 5 ABUSE, HARASSMENT, OR DIFFERENTIAL TREATMENT ON THE BASIS OF ACTUAL OR 6 PERCEIVED SEXUAL ORIENTATION, GENDER IDENTITY OR EXPRESSION, OR HIV 7 STATUS, OR BASED ON ASSOCIATION WITH ANOTHER INDIVIDUAL ON ACCOUNT OF 8 THAT INDIVIDUAL'S ACTUAL OR PERCEIVED SEXUAL ORIENTATION, GENDER IDENTI- 9 TY OR EXPRESSION, OR HIV STATUS. YOU MAY FILE A COMPLAINT WITH THE 10 OFFICE OF THE NEW YORK STATE LONG-TERM CARE OMBUDSMAN PROGRAM (PROVIDE 11 CONTACT INFORMATION) IF YOU BELIEVE THAT YOU HAVE EXPERIENCED THIS KIND 12 OF DISCRIMINATION." 13 § 4672. Recordkeeping. 1. A facility shall employ procedures for 14 recordkeeping, including, but not limited to, records generated at the 15 time of admission, that include the gender identity, correct name, as 16 indicated by the resident, and pronoun of each resident, as indicated by 17 the resident and such records will be kept up to date. 18 2. The New York state long-term care ombudsman program shall employ 19 procedures for recordkeeping of complaints filed from residents of long- 20 term care facilities pursuant to this article, and shall establish a 21 method of publicly reporting these complaints while maintaining resi- 22 dents' individual privacy. 23 § 4673. Protection of personally identifiable information. Long-term 24 care facilities shall protect personally identifiable information 25 regarding residents' sexual orientation, whether a resident is transgen- 26 der, a resident's transition history, and HIV status from unauthorized 27 disclosure, as required by the federal Health Insurance Portability and 28 Accountability Act of 1996 (42 U.S.C. Sec. 300gg), if applicable, and 29 any other applicable provision of federal or state law. A facility shall 30 take any steps reasonably necessary to minimize the likelihood of inad- 31 vertent or incidental disclosure of that information to other residents, 32 visitors, or facility staff, except to the minimum extent necessary for 33 facility staff to perform their duties. 34 § 4674. Resident privacy. Long-term care facility staff not directly 35 involved in providing direct care to a resident, including, but not 36 limited to, a transgender or gender-nonconforming resident, shall not be 37 present during physical examination or the provision of personal care to 38 that resident if the resident is partially or fully unclothed without 39 the express permission of that resident, or the resident's legally 40 authorized representative or responsible party. A facility shall use 41 doors, curtains, screens, or other effective visual barriers to provide 42 bodily privacy for all residents, including, but not limited to, trans- 43 gender or gender-nonconforming residents, whenever they are partially or 44 fully unclothed. In addition, all residents, including, but not limited 45 to, LGBT or gender-nonconforming residents, shall be informed of and 46 have the right to refuse to be examined, observed, or treated by any 47 facility staff when the primary purpose is educational or informational 48 rather than therapeutic, or for resident appraisal or reappraisal, and 49 that refusal shall not diminish the resident's access to care for the 50 primary purpose of diagnosis or treatment. 51 § 4675. Training. 1. At least once every two years, a long-term care 52 facility shall ensure that each facility staff member who works directly 53 with residents receives training on cultural competency focusing on 54 patients who identify as LGBT and patients living with HIV. 55 2. The instruction required by subdivision one of this section shall 56 be provided by an entity or individual with expertise in identifying and A. 372 4 1 addressing the legal and social challenges faced by LGBT people and 2 people living with HIV as they age and reside in long-term care facili- 3 ties and shall teach attitudes, knowledge, and skills that enable facil- 4 ity staff to care effectively for residents who identify as LGBT and 5 residents living with HIV, which may include: 6 (a) understanding and applying relevant data concerning health dispar- 7 ities and risk factors for patients seeking clinical care who identify 8 as LGBT and patients living with HIV; 9 (b) legal requirements pertaining to patients who identify as LGBT and 10 patients living with HIV; 11 (c) best practices for collection, storage, use, and confidentiality 12 of information regarding sexual orientation, gender identity and HIV 13 status; 14 (d) best practices for training support staff regarding treatment of 15 patients who identify as LGBT or are living with HIV and their families; 16 and 17 (e) understanding the intersections between systems of oppression and 18 discrimination, recognizing that those who identify as LGBT or are 19 living with HIV may experience these systems in varying degrees of 20 intensity, addressing underlying cultural biases, and providing nondis- 21 criminatory care. 22 3. Facility staff required to receive training under this section 23 shall receive the training within six months of hire unless the person 24 provides proof of having received comparable training within the prior 25 two years that the facility determines complies with this section. If 26 the facility accepts the person's proof of prior training, a record of 27 the content of the prior training sufficient to determine its compliance 28 with this section must be kept on site at the facility. 29 4. The department, in conjunction with the office for the aging, shall 30 develop and implement regulations for the conduct of training as 31 required by this section. 32 § 4676. Application. Nothing in this article should be construed to 33 impede existing programs, benefits, or protections for LGBT residents or 34 residents living with HIV at long-term care facilities. 35 § 4677. Violations. 1. A violation of the provisions of this article 36 shall be treated as a violation under section twelve of this chapter. 37 2. Any facility that intentionally violates any provision of this 38 article shall be liable, in a civil action or proceeding maintained by 39 one of more residents of the long-term care facility, for injunctive 40 relief, damages, or any other appropriate relief in law or equity. If it 41 shall appear to the satisfaction of the court or justice that the facil- 42 ity has, in fact, violated a provision of this article, an injunction 43 may be issued by such court or justice, enjoining and restraining any 44 further violation, without requiring proof that any resident of the 45 long-term care facility has, in fact, been injured or damaged thereby. 46 § 2. This act shall take effect on the one hundred eightieth day after 47 it shall have become a law. Effective immediately, the addition, amend- 48 ment and/or repeal of any rule or regulation necessary for the implemen- 49 tation of this act on its effective date are authorized to be made on or 50 before such date.