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S01783 Summary:

S01783 Actions:

S01783 Committee Votes:

S01783 Floor Votes:

S01783 Text:

 
                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.