Text of NY S 1783 (2023)

STATE OF NEW YORK ________________________________________________________________________ 1783 2023-2024 Regular Sessions IN SENATE January 13, 2023 ___________ Introduced by Sens. HOYLMAN-SIGAL, HINCHEY, JACKSON, KENNEDY, MAY, MYRIE, RAMOS, RIVERA, SALAZAR, SKOUFIS, STAVISKY -- read twice and ordered printed, and when printed to be committed to the Committee on Health 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. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01718-01-3 S. 1783 2 1 3. "LGBT" shall mean lesbian, gay, bisexual, or transgender. 2 4. "Long-term care facilities" or "facilities" shall mean residential 3 health care facilities as defined in subdivision three of section twen- 4 ty-eight hundred one of this chapter, adult care facilities as defined 5 in subdivision twenty-one of section two of the social services law, and 6 assisted living residences, as defined in article forty-six-B of this 7 chapter, or any facilities which hold themselves out or advertise them- 8 selves as providing assisted living services and which are required to 9 be licensed or certified under the social services law or this chapter. 10 5. "Long-term care facility staff" or "facility staff" shall mean all 11 individuals employed by or contracted directly with the facility. 12 6. "Resident" shall mean a resident or patient of a long-term care 13 facility. 14 7. "Transition" shall mean to undergo a process by which a person 15 changes physical sex characteristics or gender expression to match the 16 person's inner sense of being male or female. This process may include, 17 among other things, a name change, a change in preferred pronouns, and a 18 change in social gender expression, as indicated by hairstyle, clothing, 19 and restroom use. Transition may or may not include hormone use and 20 surgery. 21 § 4671. Unlawful actions. 1. Except as provided in subdivision two of 22 this section, it shall be unlawful for a long-term care facility or 23 facility staff to take any of the following actions wholly or partially 24 for a discriminatory reason on the basis of a person's actual or 25 perceived sexual orientation, gender identity or expression, or human 26 immunodeficiency virus (HIV) status: 27 (a) deny admission to a long-term care facility, transfer or refuse to 28 transfer a resident within a facility or to another facility, or 29 discharge or evict a resident from a facility; 30 (b) deny a request by residents to share a room; 31 (c) where rooms are assigned by gender, assigning, reassigning or 32 refusing to assign a room to a transgender resident other than in 33 accordance with the transgender resident's gender identity, unless at 34 the transgender resident's request; 35 (d) prohibit a resident from using, or harass a resident who seeks to 36 use or does use, a restroom available to other persons of the same 37 gender identity, regardless of whether the resident has taken or is 38 taking hormones, has had transition-related surgery, or is making a 39 gender transition or appears to be gender-nonconforming. Harassment 40 includes, but is not limited to, requiring a resident to show identity 41 documents in order to gain entrance to a restroom available to other 42 persons of the same gender identity; 43 (e) willfully and repeatedly fail to use a resident's preferred name 44 or pronouns after being clearly informed of the preferred name or 45 pronouns, even if the resident is not present; 46 (f) deny a resident the right to wear or be dressed in clothing, 47 accessories, or cosmetics that are permitted for any other resident; 48 (g) restrict a resident's right to associate with other residents or 49 with visitors, including the right to consensual expression of intimacy 50 or sexual relations, unless the restriction is uniformly applied to all 51 residents in a nondiscriminatory manner; and 52 (h) deny or restrict a resident from accessing appropriate medical or 53 nonmedical care, or provide medical or nonmedical care, that unreason- 54 ably demeans the resident's dignity or causes avoidable discomfort. S. 1783 3 1 2. The provisions of this section shall not apply to the extent that 2 they are incompatible with any professionally reasonable clinical judg- 3 ment that is based on articulable facts of clinical significance. 4 3. Each facility shall post the following notice alongside its current 5 nondiscrimination policy in all places and on all materials where that 6 policy is posted: "(NAME OF FACILITY) DOES NOT DISCRIMINATE AND DOES 7 NOT PERMIT DISCRIMINATION, INCLUDING, BUT NOT LIMITED TO, BULLYING, 8 ABUSE, HARASSMENT, OR DIFFERENTIAL TREATMENT ON THE BASIS OF ACTUAL OR 9 PERCEIVED SEXUAL ORIENTATION, GENDER IDENTITY OR EXPRESSION, OR HIV 10 STATUS, OR BASED ON ASSOCIATION WITH ANOTHER INDIVIDUAL ON ACCOUNT OF 11 THAT INDIVIDUAL'S ACTUAL OR PERCEIVED SEXUAL ORIENTATION, GENDER IDENTI- 12 TY OR EXPRESSION, OR HIV STATUS. YOU MAY FILE A COMPLAINT WITH THE 13 OFFICE OF THE NEW YORK STATE LONG-TERM CARE OMBUDSMAN PROGRAM (PROVIDE 14 CONTACT INFORMATION) IF YOU BELIEVE THAT YOU HAVE EXPERIENCED THIS KIND 15 OF DISCRIMINATION." 16 § 4672. Recordkeeping. 1. A facility shall employ procedures for 17 recordkeeping, including, but not limited to, records generated at the 18 time of admission, that include the gender identity, correct name, as 19 indicated by the resident, and pronoun of each resident, as indicated by 20 the resident and such records will be kept up to date. 21 2. The New York state long-term care ombudsman program shall employ 22 procedures for recordkeeping of complaints filed from residents of long- 23 term care facilities pursuant to this article, and shall establish a 24 method of publicly reporting these complaints while maintaining resi- 25 dents' individual privacy. 26 § 4673. Protection of personally identifiable information. Long-term 27 care facilities shall protect personally identifiable information 28 regarding residents' sexual orientation, whether a resident is transgen- 29 der, a resident's transition history, and HIV status from unauthorized 30 disclosure, as required by the federal Health Insurance Portability and 31 Accountability Act of 1996 (42 U.S.C. Sec. 300gg), if applicable, and 32 any other applicable provision of federal or state law. A facility shall 33 take any steps reasonably necessary to minimize the likelihood of inad- 34 vertent or incidental disclosure of that information to other residents, 35 visitors, or facility staff, except to the minimum extent necessary for 36 facility staff to perform their duties. 37 § 4674. Resident privacy. Long-term care facility staff not directly 38 involved in providing direct care to a resident, including, but not 39 limited to, a transgender or gender-nonconforming resident, shall not be 40 present during physical examination or the provision of personal care to 41 that resident if the resident is partially or fully unclothed without 42 the express permission of that resident, or the resident's legally 43 authorized representative or responsible party. A facility shall use 44 doors, curtains, screens, or other effective visual barriers to provide 45 bodily privacy for all residents, including, but not limited to, trans- 46 gender or gender-nonconforming residents, whenever they are partially or 47 fully unclothed. In addition, all residents, including, but not limited 48 to, LGBT or gender-nonconforming residents, shall be informed of and 49 have the right to refuse to be examined, observed, or treated by any 50 facility staff when the primary purpose is educational or informational 51 rather than therapeutic, or for resident appraisal or reappraisal, and 52 that refusal shall not diminish the resident's access to care for the 53 primary purpose of diagnosis or treatment. 54 § 4675. Training. 1. At least once every two years, a long-term care 55 facility shall ensure that each facility staff member who works directly S. 1783 4 1 with residents receives training on cultural competency focusing on 2 patients who identify as LGBT and patients living with HIV. 3 2. The instruction required by subdivision one of this section shall 4 be provided by an entity or individual with expertise in identifying and 5 addressing the legal and social challenges faced by LGBT people and 6 people living with HIV as they age and reside in long-term care facili- 7 ties and shall teach attitudes, knowledge, and skills that enable facil- 8 ity staff to care effectively for residents who identify as LGBT and 9 residents living with HIV, which may include: 10 (a) understanding and applying relevant data concerning health dispar- 11 ities and risk factors for patients seeking clinical care who identify 12 as LGBT and patients living with HIV; 13 (b) legal requirements pertaining to patients who identify as LGBT and 14 patients living with HIV; 15 (c) best practices for collection, storage, use, and confidentiality 16 of information regarding sexual orientation, gender identity and HIV 17 status; 18 (d) best practices for training support staff regarding treatment of 19 patients who identify as LGBT or are living with HIV and their families; 20 and 21 (e) understanding the intersections between systems of oppression and 22 discrimination, recognizing that those who identify as LGBT or are 23 living with HIV may experience these systems in varying degrees of 24 intensity, addressing underlying cultural biases, and providing nondis- 25 criminatory care. 26 3. Facility staff required to receive training under this section 27 shall receive the training within six months of hire unless the person 28 provides proof of having received comparable training within the prior 29 two years that the facility determines complies with this section. If 30 the facility accepts the person's proof of prior training, a record of 31 the content of the prior training sufficient to determine its compliance 32 with this section must be kept on site at the facility. 33 4. The department, in conjunction with the office for the aging, shall 34 develop and implement regulations for the conduct of training as 35 required by this section. 36 § 4676. Application. Nothing in this article should be construed to 37 impede existing programs, benefits, or protections for LGBT residents or 38 residents living with HIV at long-term care facilities. 39 § 4677. Violations. 1. A violation of the provisions of this article 40 shall be treated as a violation under section twelve of this chapter. 41 2. Any facility that intentionally violates any provision of this 42 article shall be liable, in a civil action or proceeding maintained by 43 one of more residents of the long-term care facility, for injunctive 44 relief, damages, or any other appropriate relief in law or equity. If it 45 shall appear to the satisfaction of the court or justice that the facil- 46 ity has, in fact, violated a provision of this article, an injunction 47 may be issued by such court or justice, enjoining and restraining any 48 further violation, without requiring proof that any resident of the 49 long-term care facility has, in fact, been injured or damaged thereby. 50 § 2. This act shall take effect on the one hundred eightieth day after 51 it shall have become a law. Effective immediately, the addition, amend- 52 ment and/or repeal of any rule or regulation necessary for the implemen- 53 tation of this act on its effective date are authorized to be made on or 54 before such date.

STATE OF NEW YORK ________________________________________________________________________ 1783--A Cal. No. 247 2023-2024 Regular Sessions IN SENATE January 13, 2023 ___________ Introduced by Sens. HOYLMAN-SIGAL, CLEARE, COONEY, HINCHEY, JACKSON, KENNEDY, MAY, MYRIE, RAMOS, RIVERA, SALAZAR, SCARCELLA-SPANTON, SEPULVEDA, SKOUFIS, STAVISKY, WEBB -- read twice and ordered printed, and when printed to be committed to the Committee on Health -- reported favorably from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading AN ACT to amend the public health law, in relation to establishing the lesbian, gay, bisexual and transgender, and people living with HIV long-term care facility residents' 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 section 2 2803-c-2 to read as follows: 3 § 2803-c-2. Lesbian, gay, bisexual and transgender, and people living 4 with HIV long-term care facility residents' bill of rights. 1. Defi- 5 nitions. For the purposes of this section: 6 (a) "Gender identity or expression" shall have the same meaning as 7 defined by section two hundred ninety-two of the executive law. 8 (b) "Long-term care facilities" or "facilities" shall mean residential 9 health care facilities as defined in subdivision three of section twen- 10 ty-eight hundred one of this article, adult care facilities as defined 11 in subdivision twenty-one of section two of the social services law, and 12 assisted living residences, as defined in article forty-six-B of this 13 chapter, or any facilities which hold themselves out or advertise them- 14 selves as providing assisted living services and which are required to 15 be licensed or certified under the social services law or this chapter. 16 (c) "Long-term care facility staff" or "facility staff" shall mean all 17 individuals employed by or contracted directly with the facility. 18 (d) "Resident" shall mean a resident or patient of a long-term care 19 facility. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01718-09-3 S. 1783--A 2 1 2. (a) Except as provided in subdivision three of this section, it 2 shall be unlawful for a long-term care facility or facility staff to 3 discriminate against any resident on the basis of such resident's actual 4 or perceived sexual orientation, gender identity or expression, or human 5 immunodeficiency virus (HIV) status: 6 (i) deny admission to a long-term care facility, transfer or refuse to 7 transfer a resident within a facility or to another facility, or 8 discharge or evict a resident from a facility; 9 (ii) deny a request by residents to share a room; 10 (iii) where rooms are assigned by gender, assigning, reassigning or 11 refusing to assign a room to a transgender resident other than in 12 accordance with the transgender resident's gender identity, unless at 13 the transgender resident's request; 14 (iv) prohibit a resident from using, or harass a resident who seeks to 15 use or does use, a restroom available to other persons of the same 16 gender identity, regardless of whether the resident has taken or is 17 taking hormones, has had transition-related surgery, or is making a 18 gender transition or appears to be gender-nonconforming. Harassment 19 includes, but is not limited to, requiring a resident to show identity 20 documents in order to gain entrance to a restroom available to other 21 persons of the same gender identity; 22 (v) willfully and repeatedly fail to use a resident's preferred name 23 or pronouns after being clearly informed of the preferred name or 24 pronouns, even if the resident is not present; 25 (vi) deny a resident the right to wear or be dressed in clothing, 26 accessories, or cosmetics that are permitted for any other resident; 27 (vii) restrict a resident's right to associate with other residents or 28 with visitors, including the right to consensual expression of intimacy 29 or sexual relations, unless the restriction is uniformly applied to all 30 residents in a nondiscriminatory manner; and 31 (viii) deny or restrict a resident from accessing appropriate medical 32 or nonmedical care, or provide medical or nonmedical care, that unrea- 33 sonably demeans the resident's dignity or causes avoidable discomfort. 34 (b) The provisions of this subdivision shall not apply to the extent 35 that they are incompatible with any professionally reasonable clinical 36 judgment that is based on articulable facts of clinical significance. 37 3. Each facility shall post the following notice alongside its current 38 nondiscrimination policy in all places and on all materials where that 39 policy is posted: "(NAME OF FACILITY) DOES NOT DISCRIMINATE AND DOES 40 NOT PERMIT DISCRIMINATION, INCLUDING, BUT NOT LIMITED TO, BULLYING, 41 ABUSE, HARASSMENT, OR DIFFERENTIAL TREATMENT ON THE BASIS OF ACTUAL OR 42 PERCEIVED SEXUAL ORIENTATION, GENDER IDENTITY OR EXPRESSION, OR HIV 43 STATUS, OR BASED ON ASSOCIATION WITH ANOTHER INDIVIDUAL ON ACCOUNT OF 44 THAT INDIVIDUAL'S ACTUAL OR PERCEIVED SEXUAL ORIENTATION, GENDER IDENTI- 45 TY OR EXPRESSION, OR HIV STATUS. YOU MAY FILE A COMPLAINT WITH THE 46 OFFICE OF THE NEW YORK STATE LONG-TERM CARE OMBUDSMAN PROGRAM (PROVIDE 47 CONTACT INFORMATION) IF YOU BELIEVE THAT YOU HAVE EXPERIENCED THIS KIND 48 OF DISCRIMINATION." 49 4. (a) A facility shall employ procedures for recordkeeping, includ- 50 ing, but not limited to, records generated at the time of admission, 51 that include the gender identity, correct name, as indicated by the 52 resident, and pronoun of each resident, as indicated by the resident and 53 such records shall be kept up to date. 54 (b) The state long-term care ombudsman program shall establish poli- 55 cies and procedures for recording complaints filed from residents of 56 long-term care facilities pursuant to this section. S. 1783--A 3 1 5. Long-term care facilities shall protect personally identifiable 2 information regarding residents' sexual orientation, whether a resident 3 is transgender, a resident's transition history, and HIV status from 4 unauthorized disclosure, as required by the federal Health Insurance 5 Portability and Accountability Act of 1996, if applicable, and any other 6 applicable provision of federal or state law. A facility shall take any 7 steps reasonably necessary to minimize the likelihood of inadvertent or 8 incidental disclosure of that information to other residents, visitors, 9 or facility staff, except to the minimum extent necessary for facility 10 staff to perform their duties. 11 6. Long-term care facility staff not directly involved in providing 12 direct care to a resident, including, but not limited to, a transgender 13 or gender-nonconforming resident, shall not be present during physical 14 examination or the provision of personal care to such resident if such 15 resident is partially or fully unclothed without the express permission 16 of such resident, or such resident's legally authorized representative 17 or responsible party. A facility shall use doors, curtains, screens, or 18 other effective visual barriers to provide bodily privacy for all resi- 19 dents, including, but not limited to, transgender or gender-nonconform- 20 ing residents, whenever they are partially or fully unclothed. In addi- 21 tion, all residents, including, but not limited to, lesbian, gay, 22 bisexual, transgender or gender-nonconforming residents, shall be 23 informed of and have the right to refuse to be examined, observed, or 24 treated by any facility staff when the primary purpose is educational or 25 informational rather than therapeutic, or for resident appraisal or 26 reappraisal, and that refusal shall not diminish the resident's access 27 to care for the primary purpose of diagnosis or treatment. 28 7. (a) At least once every two years, a long-term care facility shall 29 ensure that every facility staff member who works directly with resi- 30 dents receives training on cultural competency focusing on residents who 31 identify as lesbian, gay, bisexual or transgender and residents living 32 with HIV. Such training shall be developed by the commissioner, in 33 consultation with the director of the office for the aging and entities 34 with expertise in the legal and social challenges faced by lesbian, gay, 35 bisexual or transgender older adults and people living with HIV as they 36 age and reside in long-term care facilities, and shall include, but not 37 be limited to, providing facility staff with the knowledge and skills 38 necessary to provide effective care, in compliance with this section, 39 for residents who identify as lesbian, gay, bisexual or transgender and 40 residents living with HIV. 41 (b) Facility staff required to receive training under this subdivision 42 shall receive the training within six months of hire unless the person 43 provides proof of having received comparable training within the prior 44 two years that the facility determines complies with this subdivision. 45 If the facility accepts the person's proof of prior training, a record 46 of the content of the prior training sufficient to determine its compli- 47 ance with this subdivision shall be kept on site at the facility. 48 8. Nothing in this section should be construed to impede existing 49 programs, benefits, or protections for lesbian, gay, bisexual or trans- 50 gender residents or residents living with HIV at long-term care facili- 51 ties. 52 § 2. This act shall take effect on the one hundred eightieth day after 53 it shall have become a law. Effective immediately, the addition, amend- 54 ment and/or repeal of any rule or regulation necessary for the implemen- 55 tation of this act on its effective date are authorized to be made on or 56 before such date.