S02912 Summary:

BILL NOS02912A
 
SAME ASSAME AS A00866-A
 
SPONSORHOYLMAN
 
COSPNSR
 
MLTSPNSR
 
Amd 203, Eld L; add Art 46-C 4670 - 4677, Pub Health L
 
Establishes the lesbian, gay, bisexual, and transgender long-term care facility residents' bill of rights.
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S02912 Actions:

BILL NOS02912A
 
01/30/2019REFERRED TO AGING
05/10/2019AMEND (T) AND RECOMMIT TO AGING
05/10/2019PRINT NUMBER 2912A
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S02912 Committee Votes:

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S02912 Floor Votes:

There are no votes for this bill in this legislative session.
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S02912 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         2912--A
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                    January 30, 2019
                                       ___________
 
        Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
          printed to be  committed  to  the  Committee  on  Aging  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee
 
        AN  ACT to amend the elder law and the public health law, in relation to
          establishing the lesbian, gay,  bisexual,  and  transgender  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.  Subdivision 1 of section 203 of the elder law  is  amended
     2  to read as follows:
     3    1. The office shall submit to the federal department of health, educa-
     4  tion  and  welfare a state plan for purposes of the federal older Ameri-
     5  cans act of 1965 and subsequent amendments thereto. The office shall  be
     6  the  single state agency for supervising the administration of such plan
     7  and shall be primarily responsible for coordination  of  state  programs
     8  for the aging for purposes of such federal act. The office shall act for
     9  the state in any negotiations relative to the submission and approval of
    10  such  plan and may make such arrangements, not inconsistent with law, as
    11  may be required by or pursuant to federal law to obtain and retain  such
    12  approval  and  to secure for the state the benefits of the provisions of
    13  such federal act.  For the purposes of administering the  federal  older
    14  Americans  Act  of  1965  and  subsequent  amendments  thereto, the term
    15  "greatest social need" shall be interpreted by the office to include the
    16  lesbian, gay, bisexual and trangender  senior  population,  as  well  as
    17  seniors living with HIV.
    18    § 2.  The public health law is amended by adding a new article 46-C to
    19  read as follows:
    20                                ARTICLE 46-C
    21       LESBIAN, GAY, BISEXUAL, AND TRANSGENDER LONG-TERM CARE FACILITY
    22                          RESIDENTS' BILL OF RIGHTS
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01537-04-9

        S. 2912--A                          2
 
     1  Section 4670. Definitions.
     2          4671. Unlawful actions.
     3          4672. Recordkeeping.
     4          4673. Protection of personally identifiable information.
     5          4674. Resident privacy.
     6          4675. Training.
     7          4676. Application.
     8          4677. Violations.
     9    § 4670. Definitions. For the purposes of this article:
    10    1."Gender  identity  or  expression"  shall  mean a person's actual or
    11  perceived gender-related identity, appearance, behavior, expression,  or
    12  other  gender-related  characteristic  regardless of the sex assigned to
    13  that person at birth, including, but not limited to, the status of being
    14  transgender.
    15    2. "Gender-nonconforming" shall mean a person whose gender  expression
    16  does  not  conform  to  stereotypical expectations of how a man or woman
    17  should appear or act.
    18    3. "LGBT" shall mean lesbian, gay, bisexual, or transgender.
    19    4. "Long-term care facilities" or "facilities" shall mean  residential
    20  health  care facilities as defined in subdivision three of section twen-
    21  ty-eight hundred one of this chapter, adult care facilities  as  defined
    22  in subdivision twenty-one of section two of the social services law, and
    23  assisted  living  residences,  as defined in article forty-six-B of this
    24  chapter, or any facilities which hold themselves out or advertise  them-
    25  selves  as  providing assisted living services and which are required to
    26  be licensed or certified under the social services law or this chapter.
    27    5. "Long-term care facility staff" or "facility staff" shall mean  all
    28  individuals employed by or contracted directly with the facility.
    29    6.  "Resident"  shall  mean  a resident or patient of a long-term care
    30  facility.
    31    7. "Transition" shall mean to undergo a  process  by  which  a  person
    32  changes  physical  sex characteristics or gender expression to match the
    33  person's inner sense of being male or female. This process may  include,
    34  among other things, a name change, a change in preferred pronouns, and a
    35  change in social gender expression, as indicated by hairstyle, clothing,
    36  and  restroom  use.  Transition  may  or may not include hormone use and
    37  surgery.
    38    § 4671. Unlawful actions. 1. Except as provided in subdivision two  of
    39  this  section,  it  shall  be  unlawful for a long-term care facility or
    40  facility staff to take any of the following actions wholly or  partially
    41  for  a  discriminatory  reason  on  the  basis  of  a person's actual or
    42  perceived sexual orientation, gender identity or  expression,  or  human
    43  immunodeficiency virus (HIV) status:
    44    (a) deny admission to a long-term care facility, transfer or refuse to
    45  transfer  a  resident  within  a  facility  or  to  another facility, or
    46  discharge or evict a resident from a facility;
    47    (b) deny a request by residents to share a room;
    48    (c) where rooms are assigned  by  gender,  assigning,  reassigning  or
    49  refusing  to  assign  a  room  to  a  transgender resident other than in
    50  accordance with the transgender resident's gender  identity,  unless  at
    51  the transgender resident's request;
    52    (d)  prohibit a resident from using, or harass a resident who seeks to
    53  use or does use, a restroom available  to  other  persons  of  the  same
    54  gender  identity,  regardless  of  whether  the resident has taken or is
    55  taking hormones, has had transition-related  surgery,  or  is  making  a
    56  gender  transition  or  appears to be gender-nonconforming.   Harassment

        S. 2912--A                          3
 
     1  includes, but is not limited to, requiring a resident to  show  identity
     2  documents  in  order  to  gain entrance to a restroom available to other
     3  persons of the same gender identity;
     4    (e)  willfully  and repeatedly fail to use a resident's preferred name
     5  or pronouns after being  clearly  informed  of  the  preferred  name  or
     6  pronouns, even if the resident is not present;
     7    (f)  deny  a  resident  the  right  to wear or be dressed in clothing,
     8  accessories, or cosmetics that are permitted for any other resident;
     9    (g) restrict a resident's right to associate with other  residents  or
    10  with  visitors, including the right to consensual expression of intimacy
    11  or sexual relations, unless the restriction is uniformly applied to  all
    12  residents in a nondiscriminatory manner; and
    13    (h)  deny or restrict a resident from accessing appropriate medical or
    14  nonmedical care, or provide medical or nonmedical care,  that  unreason-
    15  ably demeans the resident's dignity or causes avoidable discomfort.
    16    2.  The  provisions of this section shall not apply to the extent that
    17  they are incompatible with any professionally reasonable clinical  judg-
    18  ment that is based on articulable facts of clinical significance.
    19    3. Each facility shall post the following notice alongside its current
    20  nondiscrimination  policy  in all places and on all materials where that
    21  policy is posted:  "(NAME OF FACILITY) DOES NOT  DISCRIMINATE  AND  DOES
    22  NOT  PERMIT  DISCRIMINATION,  INCLUDING,  BUT  NOT LIMITED TO, BULLYING,
    23  ABUSE, HARASSMENT, OR DIFFERENTIAL TREATMENT ON THE BASIS OF  ACTUAL  OR
    24  PERCEIVED  SEXUAL  ORIENTATION,  GENDER  IDENTITY  OR EXPRESSION, OR HIV
    25  STATUS, OR BASED ON ASSOCIATION WITH ANOTHER INDIVIDUAL  ON  ACCOUNT  OF
    26  THAT INDIVIDUAL'S ACTUAL OR PERCEIVED SEXUAL ORIENTATION, GENDER IDENTI-
    27  TY  OR  EXPRESSION,  OR  HIV  STATUS.  YOU MAY FILE A COMPLAINT WITH THE
    28  OFFICE OF THE NEW YORK STATE LONG-TERM CARE OMBUDSMAN  PROGRAM  (PROVIDE
    29  CONTACT  INFORMATION) IF YOU BELIEVE THAT YOU HAVE EXPERIENCED THIS KIND
    30  OF DISCRIMINATION."
    31    § 4672. Recordkeeping. 1.  A  facility  shall  employ  procedures  for
    32  recordkeeping,  including,  but not limited to, records generated at the
    33  time of admission, that include the gender identity,  correct  name,  as
    34  indicated by the resident, and pronoun of each resident, as indicated by
    35  the resident and such records will be kept up to date.
    36    2.  The  New  York state long-term care ombudsman program shall employ
    37  procedures for recordkeeping of complaints filed from residents of long-
    38  term care facilities pursuant to this article,  and  shall  establish  a
    39  method  of  publicly  reporting these complaints while maintaining resi-
    40  dents' individual privacy.
    41    § 4673. Protection of personally identifiable  information.  Long-term
    42  care   facilities  shall  protect  personally  identifiable  information
    43  regarding residents' sexual orientation, whether a resident is transgen-
    44  der, a resident's transition history, and HIV status  from  unauthorized
    45  disclosure,  as required by the federal Health Insurance Portability and
    46  Accountability Act of 1996 (42 U.S.C. Sec. 300gg),  if  applicable,  and
    47  any other applicable provision of federal or state law. A facility shall
    48  take  any steps reasonably necessary to minimize the likelihood of inad-
    49  vertent or incidental disclosure of that information to other residents,
    50  visitors, or facility staff, except to the minimum extent necessary  for
    51  facility staff to perform their duties.
    52    §  4674.  Resident privacy. Long-term care facility staff not directly
    53  involved in providing direct care to  a  resident,  including,  but  not
    54  limited to, a transgender or gender-nonconforming resident, shall not be
    55  present during physical examination or the provision of personal care to
    56  that  resident  if  the resident is partially or fully unclothed without

        S. 2912--A                          4
 
     1  the express permission of  that  resident,  or  the  resident's  legally
     2  authorized  representative  or  responsible  party. A facility shall use
     3  doors, curtains, screens, or other effective visual barriers to  provide
     4  bodily  privacy for all residents, including, but not limited to, trans-
     5  gender or gender-nonconforming residents, whenever they are partially or
     6  fully unclothed. In addition, all residents, including, but not  limited
     7  to,  LGBT  or  gender-nonconforming  residents, shall be informed of and
     8  have the right to refuse to be examined, observed,  or  treated  by  any
     9  facility  staff when the primary purpose is educational or informational
    10  rather than therapeutic, or for resident appraisal or  reappraisal,  and
    11  that  refusal  shall  not diminish the resident's access to care for the
    12  primary purpose of diagnosis or treatment.
    13    § 4675. Training. 1.  At least once every two years, a long-term  care
    14  facility shall ensure that each facility staff member who works directly
    15  with  residents  receives  training  on  cultural competency focusing on
    16  patients who identify as LGBT and patients living with HIV.
    17    2.  The instruction required by subdivision one of this section  shall
    18  be provided by an entity or individual with expertise in identifying and
    19  addressing  the  legal  and  social  challenges faced by LGBT people and
    20  people living with HIV as they age and reside in long-term care  facili-
    21  ties and shall teach attitudes, knowledge, and skills that enable facil-
    22  ity  staff  to  care  effectively for residents who identify as LGBT and
    23  residents living with HIV, which may include:
    24    (a) understanding and applying relevant data concerning health dispar-
    25  ities and risk factors for patients seeking clinical care  who  identify
    26  as LGBT and patients living with HIV;
    27    (b) legal requirements pertaining to patients who identify as LGBT and
    28  patients living with HIV;
    29    (c)  best  practices for collection, storage, use, and confidentiality
    30  of information regarding sexual orientation,  gender  identity  and  HIV
    31  status;
    32    (d)  best  practices for training support staff regarding treatment of
    33  patients who identify as LGBT or are living with HIV and their families;
    34  and
    35    (e) understanding the intersections between systems of oppression  and
    36  discrimination,  recognizing  that  those  who  identify  as LGBT or are
    37  living with HIV may experience  these  systems  in  varying  degrees  of
    38  intensity,  addressing underlying cultural biases, and providing nondis-
    39  criminatory care.
    40    3. Facility staff required to  receive  training  under  this  section
    41  shall  receive  the training within six months of hire unless the person
    42  provides proof of having received comparable training within  the  prior
    43  two  years  that the facility determines complies with this section.  If
    44  the facility accepts the person's proof of prior training, a  record  of
    45  the content of the prior training sufficient to determine its compliance
    46  with this section must be kept on site at the facility.
    47    4. The department, in conjunction with the office for the aging, shall
    48  develop  and  implement  regulations  for  the  conduct  of  training as
    49  required by this section.
    50    § 4676. Application. Nothing in this article should  be  construed  to
    51  impede existing programs, benefits, or protections for LGBT residents or
    52  residents living with HIV at long-term care facilities.
    53    §  4677.  Violations. 1. A violation of the provisions of this article
    54  shall be treated as a violation under section twelve of this chapter.
    55    2. Any facility that intentionally  violates  any  provision  of  this
    56  article  shall  be liable, in a civil action or proceeding maintained by

        S. 2912--A                          5

     1  one of more residents of the long-term  care  facility,  for  injunctive
     2  relief, damages, or any other appropriate relief in law or equity. If it
     3  shall appear to the satisfaction of the court or justice that the facil-
     4  ity  has,  in  fact, violated a provision of this article, an injunction
     5  may be issued by such court or justice, enjoining  and  restraining  any
     6  further  violation,  without  requiring  proof  that any resident of the
     7  long-term care facility has, in fact, been injured or damaged thereby.
     8    § 3. This act shall take effect on the one hundred eightieth day after
     9  it shall have become a law.  Effective immediately, the addition, amend-
    10  ment or repeal of any rule or regulation necessary for  the  implementa-
    11  tion  of  this  act  on its effective date are authorized to be made and
    12  completed on or before such date.
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