NY State Senate Bill 2019-S2912C

Senate Bill S2912C

2019-2020 Legislative Session

Establishes the lesbian, gay, bisexual, and transgender long-term care facility residents' bill of rights

download bill text pdf

Archive: Last Bill Status - In Senate Committee Aging Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 02, 2020	print number 2912c
Mar 02, 2020	amend (t) and recommit to aging
Jan 08, 2020	referred to aging
Jun 20, 2019	committed to rules
Jun 06, 2019	amended on third reading 2912b
Jun 04, 2019	advanced to third reading
Jun 03, 2019	2nd report cal.
May 30, 2019	1st report cal.1100
May 10, 2019	print number 2912a
May 10, 2019	amend (t) and recommit to aging
Jan 30, 2019	referred to aging

Votes

- May 30, 2019 - Aging Committee Vote
  S2912C
  
  5
  
  Aye
  
  0
  
  Nay
  
  2
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Aging Committee Vote: May 30, 2019
      
      aye (5)
      
      Addabbo Jr.
      
      Biaggi
      
      May
      
      Serrano
      
      Thomas
      
      aye wr (2)
      
      Jacobs
      
      Serino

Bill Amendments

Original

C (Active)

2019-S2912 - Details

See Assembly Version of this Bill:: A866
Current Committee:: Senate Aging
Law Section:: Public Health Law
Laws Affected:: Add Art 46-C §§4670 - 4677, Pub Health L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S8580, A11300
2021-2022: S85, A7807
2023-2024: S1783, A372

2019-S2912 - Summary

Establishes the lesbian, gay, bisexual, and transgender long-term care facility residents' bill of rights.

2019-S2912 - Sponsor Memo

                                
 
BILL NUMBER: S2912

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to amend the elder law, in relation to establishing the lesbian,
gay, bisexual, and transgender long-term care facility residents' bill
of rights

 
SUMMARY OF PROVISIONS:

Section 1 of the bill creates a new article 4 of the New York State
Elder Law entitled "Lesbian, Gay, Bisexual, and Transgender Long-Term
Care Facility Residents' Bill of Rights."

-The newly created section 263 of the Elder Law defines terms used
throughout the act.

-The newly created section 264 of the Elder Law establishes that it is
unlawful for a long-term care facility (which includes residential
health care facilities, adult care facilities, and assisted living resi-
dences) to take or fail to take certain actions wholly or partially on

the basis of a person's actual or perceived sexual orientation, gender
identity or expression, or HIV status.  Specifically, these unlawful
actions include:

-denying admission to a long-term care facility, transferring or refus-
ing to transfer a resident within a facility or to another facility, or
discharging or evicting a resident from a facility;

-denying a request by residents to share a room;

-where rooms are assigned by gender, assigning, reassigning, or refusing
to assign a room to a transgender resident other than in accordance with
the transgender resident's gender identity, unless at the transgender
resident's request;

-prohibiting a resident from using a restroom available to other persons
of the same gender identity, or harassing a resident who seeks to use or
does use such a restroom;

-willfully and repeatedly failing to use a resident's preferred name or
pronouns after being clearly informed of the preferred name or pronouns;

-denying a resident the right to wear or be dressed in clothing, acces-
sories, or cosmetics that are permitted for any other resident;

-restricting a resident's right to associate with other residents or
with visitors, including the right to consensual sexual relations,
unless the restriction is uniformly applied to all residents in a
nondiscriminatory manner;

-denying or restricting medical or nonmedical care that is appropriate
to a resident's organ and bodily needs.

The provisions of this section do not apply where they are incompatible
with any professionally reasonable clinical judgment.  Facilities also
be required under this section to post notices about their nondiscrimi-

nation policies with information about reporting violations to the
Office of the New York State Long-Term Care Ombudsman Program.

-The newly created section 265 of the Elder Law requires facilities to
employ procedures for recordkeeping purposes that include residents'
gender identity, correct name as indicated by the resident, and
preferred pronoun as indicated by the resident.

-The newly created section 266 of the Elder Law requires facilities to
protect personally identifiable information regarding residents' sexual
orientation, whether a resident is transgender, a resident's transition
history, and HIV status from unauthorized disclosure in accordance with
applicable federal and state laws, and to take reasonably necessary
steps to prevent the inadvertent or incidental disclosure of that infor-
mation to other residents, visitors, or facility staff.

-The newly created section 267 of the Elder Law establishes that facili-
ty staff that aren't involved in providing direct care to residents
shall not be present during physical examinations or the provision of
personal care without the express permission of the resident or the
resident's legally authorized representative.

-The newly created section 268 of the Elder Law requires that long-term
care facilities shall provide existing employees and new hires access to
the online learning tool "Building Respect for LGBT Older Adults," writ-
ten by the National Resource Center on LGBT Aging.  At least once every
two years, a long-term care facility shall ensure that each facility
staff member who works directly with residents receives training on
cultural competency focusing on patients who identify as LGBT.

-The newly created section 269 of the Elder Law establishes that nothing
in this article should be construed to impede existing programs, bene-
fits, or protections for LGBT residents at long-term care facilities.

-The newly created section 270 of the Elder Law establishes that
violations of Article 4 are to be treated as violations under section 12
of the Public Health Law. Any long-term care facility that intentionally
violates any provision of this article shall be liable in a civil
proceeding maintained by one or more residents of the facility.

Section 2 is the effective date.

 
JUSTIFICATION:

In 2011, a study and report entitled "LGBT Older Adults in Long-Term
Care Facilities: Stories from the Field" was co-authored by the National
Senior Citizens Law center, the National Gay & Lesbian Task Force,
Services & Advocacy for GLBT Elders (SAGE), Lambda Legal, the National
Center for Lesbian Rights, and the National Center for Transgender
Equality. The report sought to "better understand the experiences of
LGBT older adults in long- term care settings," and surveyed hundreds of
LGBT seniors, family members, friends, social service providers, legal
service providers and others.

The findings of the report showed that 78% of LGBT seniors felt that
they could not be open with the staff of a long-term care facility about
their sexual orientation or gender identity, and a majority of all
respondents identified discrimination by staff (89%), discrimination by
other residents (81%), isolation from other residents (77%), and abuse
or neglect by staff (53%) as issues that LGBT seniors face in long-term
care facilities.

The LGBT Long-Term Care Facility Residents' Bill of Rights would help
address the common issues faced by many LGBT seniors in long-term care
facilities. Modeled after a recently-adopted California law, this bill
would build on the existing protections against discrimination found in
New York's Human Rights Law by prohibiting specific actions and
inactions by long-term care facilities and their staffs. Examples
include denying admission to a longterm care facility, transferring or
denying a transfer within a facility or to another facility, or
discharging or evicting a resident from a facility wholly or partially
based on a resident's actual or perceived sexual orientation, gender
identity or express, or HIV status.

The Bill of Rights also establishes recordkeeping procedures for resi-
dents' specified gender identity, name, and pronoun; requires the
protection of residents' personally identifiable information and bodily
privacy; and protects residents' rights to wear or dress in clothing
permitted for other residents, be referred to by a preferred name and
pronoun, and use restrooms available to other persons of the same gender
identity.

 
LEGISLATIVE HISTORY:

2018: 5.8580 (Hoylman) - Died in Aging

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the thirtieth day after it shall have
become a law.

2019-S2912 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2912
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 30, 2019
                                ___________
 
 Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Aging
 
 AN ACT to amend the elder 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:
 
   Section 1. The elder law is amended by adding a new article 4 to  read
 as follows:
                                  ARTICLE 4
       LESBIAN, GAY, BISEXUAL, AND TRANSGENDER LONG-TERM CARE FACILITY
                         RESIDENTS' BILL OF RIGHTS
 SECTION 263. DEFINITIONS.
         264. UNLAWFUL ACTIONS.
         265. RECORDKEEPING.
         266. PROTECTION OF PERSONALLY IDENTIFIABLE INFORMATION.
         267. RESIDENT PRIVACY.
         268. TRAINING.
         269. APPLICATION.
         270. VIOLATIONS.
   § 263. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE:
   1."GENDER  IDENTITY  OR  EXPRESSION"  SHALL  MEAN A PERSON'S ACTUAL OR
 PERCEIVED GENDER-RELATED IDENTITY, APPEARANCE, BEHAVIOR, EXPRESSION,  OR
 OTHER  GENDER-RELATED  CHARACTERISTIC  REGARDLESS OF THE SEX ASSIGNED TO
 THAT PERSON AT BIRTH, INCLUDING, BUT NOT LIMITED TO, THE STATUS OF BEING
 TRANSGENDER.
   2. "GENDER-NONCONFORMING" SHALL MEAN A PERSON WHOSE GENDER  EXPRESSION
 DOES  NOT  CONFORM  TO  STEREOTYPICAL EXPECTATIONS OF HOW A MAN OR WOMAN
 SHOULD APPEAR OR ACT.
   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.
                                                            LBD01537-01-9

 S. 2912                             2
 
   4. "LONG-TERM CARE FACILITIES" OR "FACILITIES" SHALL MEAN  RESIDENTIAL
 HEALTH  CARE FACILITIES AS DEFINED IN SUBDIVISION THREE OF SECTION TWEN-
 TY-EIGHT HUNDRED ONE OF THE PUBLIC HEALTH LAW, ADULT CARE FACILITIES  AS
 DEFINED  IN SUBDIVISION TWENTY-ONE OF SECTION TWO OF THE SOCIAL SERVICES
 LAW,  AND  ASSISTED LIVING RESIDENCES, AS DEFINED IN ARTICLE FORTY-SIX-B
 OF THE PUBLIC HEALTH LAW, OR ANY FACILITIES WHICH HOLD THEMSELVES OUT OR
 ADVERTISE THEMSELVES AS PROVIDING ASSISTED LIVING SERVICES AND WHICH ARE
 REQUIRED TO BE LICENSED OR CERTIFIED UNDER THE SOCIAL  SERVICES  LAW  OR
 THE PUBLIC HEALTH LAW.
   5.  "LONG-TERM CARE FACILITY STAFF" OR "FACILITY STAFF" SHALL MEAN ALL
 INDIVIDUALS EMPLOYED BY OR CONTRACTED DIRECTLY WITH THE FACILITY.
   6. "RESIDENT" SHALL MEAN A RESIDENT OR PATIENT  OF  A  LONG-TERM  CARE
 FACILITY.
   7.  "TRANSITION"  SHALL  MEAN  TO  UNDERGO A PROCESS BY WHICH A PERSON
 CHANGES PHYSICAL SEX CHARACTERISTICS OR GENDER EXPRESSION TO  MATCH  THE
 PERSON'S  INNER SENSE OF BEING MALE OR FEMALE. THIS PROCESS MAY INCLUDE,
 AMONG OTHER THINGS, A NAME CHANGE, A CHANGE IN PREFERRED PRONOUNS, AND A
 CHANGE IN SOCIAL GENDER EXPRESSION, AS INDICATED BY HAIRSTYLE, CLOTHING,
 AND RESTROOM USE. TRANSITION MAY OR MAY  NOT  INCLUDE  HORMONE  USE  AND
 SURGERY.
   §  264.  UNLAWFUL ACTIONS. 1. EXCEPT AS PROVIDED IN SUBDIVISION TWO OF
 THIS SECTION, IT SHALL BE UNLAWFUL FOR  A  LONG-TERM  CARE  FACILITY  OR
 FACILITY  STAFF TO TAKE ANY OF THE FOLLOWING ACTIONS WHOLLY OR PARTIALLY
 ON THE BASIS OF A  PERSON'S  ACTUAL  OR  PERCEIVED  SEXUAL  ORIENTATION,
 GENDER  IDENTITY  OR  EXPRESSION,  OR HUMAN IMMUNODEFICIENCY VIRUS (HIV)
 STATUS:
   (A) DENY ADMISSION TO A LONG-TERM CARE FACILITY, TRANSFER OR REFUSE TO
 TRANSFER A RESIDENT  WITHIN  A  FACILITY  OR  TO  ANOTHER  FACILITY,  OR
 DISCHARGE OR EVICT A RESIDENT FROM A FACILITY;
   (B) DENY A REQUEST BY RESIDENTS TO SHARE A ROOM;
   (C)  WHERE  ROOMS  ARE  ASSIGNED  BY GENDER, ASSIGNING, REASSIGNING OR
 REFUSING TO ASSIGN A ROOM  TO  A  TRANSGENDER  RESIDENT  OTHER  THAN  IN
 ACCORDANCE  WITH  THE  TRANSGENDER RESIDENT'S GENDER IDENTITY, UNLESS AT
 THE TRANSGENDER RESIDENT'S REQUEST;
   (D) PROHIBIT A RESIDENT FROM USING, OR HARASS A RESIDENT WHO SEEKS  TO
 USE  OR  DOES  USE,  A  RESTROOM  AVAILABLE TO OTHER PERSONS OF THE SAME
 GENDER IDENTITY, REGARDLESS OR WHETHER THE RESIDENT IS MAKING  A  GENDER
 TRANSITION  OR APPEARS TO BE GENDER-NONCONFORMING.  HARASSMENT INCLUDES,
 BUT IS NOT LIMITED TO, REQUIRING A RESIDENT TO SHOW  IDENTITY  DOCUMENTS
 IN  ORDER  TO  GAIN ENTRANCE TO A RESTROOM AVAILABLE TO OTHER PERSONS OF
 THE SAME GENDER IDENTITY;
   (E) WILLFULLY AND REPEATEDLY FAIL TO USE A RESIDENT'S  PREFERRED  NAME
 OR  PRONOUNS  AFTER  BEING  CLEARLY  INFORMED  OF  THE PREFERRED NAME OR
 PRONOUNS, EVEN IF THE RESIDENT IS NOT PRESENT;
   (F) DENY A RESIDENT THE RIGHT TO  WEAR  OR  BE  DRESSED  IN  CLOTHING,
 ACCESSORIES, OR COSMETICS THAT ARE PERMITTED FOR ANY OTHER RESIDENT;
   (G)  RESTRICT  A RESIDENT'S RIGHT TO ASSOCIATE WITH OTHER RESIDENTS OR
 WITH VISITORS, INCLUDING  THE  RIGHT  TO  CONSENSUAL  SEXUAL  RELATIONS,
 UNLESS  THE  RESTRICTION  IS  UNIFORMLY  APPLIED  TO  ALL RESIDENTS IN A
 NONDISCRIMINATORY MANNER; AND
   (H) DENY OR RESTRICT MEDICAL OR NONMEDICAL CARE THAT IS APPROPRIATE TO
 A RESIDENT'S ORGAN AND BODILY NEEDS, OR PROVIDE  MEDICAL  OR  NONMEDICAL
 CARE IN A MANNER THAT, TO A SIMILARLY SITUATED REASONABLE PERSON, UNDULY
 DEMEANS THE RESIDENT'S DIGNITY OR CAUSES AVOIDABLE DISCOMFORT.

 S. 2912                             3
 
   2.  THE  PROVISIONS OF THIS SECTION SHALL NOT APPLY TO THE EXTENT THAT
 THEY ARE INCOMPATIBLE WITH ANY PROFESSIONALLY REASONABLE CLINICAL  JUDG-
 MENT THAT IS BASED ON ARTICULABLE FACTS OF CLINICAL SIGNIFICANCE.
   3. EACH FACILITY SHALL POST THE FOLLOWING NOTICE ALONGSIDE ITS CURRENT
 NONDISCRIMINATION  POLICY  IN ALL PLACES AND ON ALL MATERIALS WHERE THAT
 POLICY IS POSTED:  "(NAME OF FACILITY) DOES NOT  DISCRIMINATE  AND  DOES
 NOT  PERMIT  DISCRIMINATION,  INCLUDING,  BUT  NOT LIMITED TO, BULLYING,
 ABUSE, HARASSMENT, OR DIFFERENTIAL TREATMENT ON THE BASIS OF  ACTUAL  OR
 PERCEIVED  SEXUAL  ORIENTATION,  GENDER  IDENTITY  OR EXPRESSION, OR HIV
 STATUS, OR BASED ON ASSOCIATION WITH ANOTHER INDIVIDUAL  ON  ACCOUNT  OF
 THAT INDIVIDUAL'S ACTUAL OR PERCEIVED SEXUAL ORIENTATION, GENDER IDENTI-
 TY  OR  EXPRESSION,  OR  HIV  STATUS.  YOU MAY FILE A COMPLAINT WITH THE
 OFFICE OF THE NEW YORK STATE LONG-TERM CARE OMBUDSMAN  PROGRAM  (PROVIDE
 CONTACT  INFORMATION) IF YOU BELIEVE THAT YOU HAVE EXPERIENCED THIS KIND
 OF DISCRIMINATION."
   § 265. RECORDKEEPING. 1.   A  FACILITY  SHALL  EMPLOY  PROCEDURES  FOR
 RECORDKEEPING,  INCLUDING,  BUT NOT LIMITED TO, RECORDS GENERATED AT THE
 TIME OF ADMISSION, THAT INCLUDE THE GENDER IDENTITY,  CORRECT  NAME,  AS
 INDICATED BY THE RESIDENT, AND PRONOUN OF EACH RESIDENT, AS INDICATED BY
 THE RESIDENT AND SUCH RECORDS WILL BE KEPT UP TO DATE.
   2.  THE  NEW  YORK STATE LONG-TERM CARE OMBUDSMAN PROGRAM SHALL EMPLOY
 PROCEDURES FOR RECORDKEEPING OF COMPLAINTS FILED FROM RESIDENTS OF LONG-
 TERM CARE FACILITIES PURSUANT TO THIS ARTICLE,  AND  SHALL  ESTABLISH  A
 METHOD  OF  PUBLICLY  REPORTING THESE COMPLAINTS WHILE MAINTAINING RESI-
 DENTS' INDIVIDUAL PRIVACY.
   § 266. PROTECTION OF PERSONALLY  IDENTIFIABLE  INFORMATION.  LONG-TERM
 CARE   FACILITIES  SHALL  PROTECT  PERSONALLY  IDENTIFIABLE  INFORMATION
 REGARDING RESIDENTS' SEXUAL ORIENTATION, WHETHER A RESIDENT IS TRANSGEN-
 DER, A RESIDENT'S TRANSITION HISTORY, AND HIV STATUS  FROM  UNAUTHORIZED
 DISCLOSURE,  AS REQUIRED BY THE FEDERAL HEALTH INSURANCE PORTABILITY AND
 ACCOUNTABILITY ACT OF 1996 (42 U.S.C. SEC. 300GG),  IF  APPLICABLE,  AND
 ANY OTHER APPLICABLE PROVISION OF FEDERAL OR STATE LAW. A FACILITY SHALL
 TAKE  ANY STEPS REASONABLY NECESSARY TO MINIMIZE THE LIKELIHOOD OF INAD-
 VERTENT OR INCIDENTAL DISCLOSURE OF THAT INFORMATION TO OTHER RESIDENTS,
 VISITORS, OR FACILITY STAFF, EXCEPT TO THE MINIMUM EXTENT NECESSARY  FOR
 FACILITY STAFF TO PERFORM THEIR DUTIES.
   §  267.  RESIDENT  PRIVACY. LONG-TERM CARE FACILITY STAFF NOT DIRECTLY
 INVOLVED IN PROVIDING DIRECT CARE TO  A  RESIDENT,  INCLUDING,  BUT  NOT
 LIMITED TO, A TRANSGENDER OR GENDER-NONCONFORMING RESIDENT, SHALL NOT BE
 PRESENT DURING PHYSICAL EXAMINATION OR THE PROVISION OF PERSONAL CARE TO
 THAT  RESIDENT  IF  THE RESIDENT IS PARTIALLY OR FULLY UNCLOTHED WITHOUT
 THE EXPRESS PERMISSION OF  THAT  RESIDENT,  OR  THE  RESIDENT'S  LEGALLY
 AUTHORIZED  REPRESENTATIVE  OR  RESPONSIBLE  PARTY. A FACILITY SHALL USE
 DOORS, CURTAINS, SCREENS, OR OTHER EFFECTIVE VISUAL BARRIERS TO  PROVIDE
 BODILY  PRIVACY FOR ALL RESIDENTS, INCLUDING, BUT NOT LIMITED TO, TRANS-
 GENDER OR GENDER-NONCONFORMING RESIDENTS, WHENEVER THEY ARE PARTIALLY OR
 FULLY UNCLOTHED. IN ADDITION, ALL RESIDENTS, INCLUDING, BUT NOT  LIMITED
 TO,  LGBT  OR  GENDER-NONCONFORMING  RESIDENTS, SHALL BE INFORMED OF AND
 HAVE THE RIGHT TO REFUSE TO BE EXAMINED, OBSERVED,  OR  TREATED  BY  ANY
 FACILITY  STAFF WHEN THE PRIMARY PURPOSE IS EDUCATIONAL OR INFORMATIONAL
 RATHER THAN THERAPEUTIC, OR FOR RESIDENT APPRAISAL OR  REAPPRAISAL,  AND
 THAT  REFUSAL  SHALL  NOT DIMINISH THE RESIDENT'S ACCESS TO CARE FOR THE
 PRIMARY PURPOSE OF DIAGNOSIS OR TREATMENT.
   § 268. TRAINING. 1.  IN ADDITION TO OTHER TRAINING REQUIRED BY FEDERAL
 OR STATE LAWS, LONG-TERM CARE FACILITIES SHALL PROVIDE EXISTING  EMPLOY-
 EES  AND  NEW HIRES ACCESS TO THE ONLINE LEARNING TOOL "BUILDING RESPECT

 S. 2912                             4
 
 FOR LGBT OLDER ADULTS," WHICH IS  AVAILABLE  ON  THE  NATIONAL  RESOURCE
 CENTER ON LGBT AGING INTERNET WEBSITE (WWW.LGBTAGINGCENTER.ORG).
   2.  AT  LEAST  ONCE  EVERY  TWO YEARS, A LONG-TERM CARE FACILITY SHALL
 ENSURE THAT EACH FACILITY STAFF MEMBER WHO WORKS DIRECTLY WITH RESIDENTS
 RECEIVES TRAINING ON CULTURAL COMPETENCY FOCUSING ON PATIENTS WHO  IDEN-
 TIFY  AS  LGBT.  THE  INSTRUCTION  REQUIRED  BY  SUBDIVISION ONE OF THIS
 SECTION SHALL TEACH ATTITUDES, KNOWLEDGE, AND SKILLS THAT ENABLE FACILI-
 TY STAFF TO CARE EFFECTIVELY FOR RESIDENTS WHO IDENTIFY AS  LGBT,  WHICH
 MAY INCLUDE:
   (A) UNDERSTANDING AND APPLYING RELEVANT DATA CONCERNING HEALTH DISPAR-
 ITIES  AND  RISK FACTORS FOR PATIENTS SEEKING CLINICAL CARE WHO IDENTIFY
 AS LGBT;
   (B) LEGAL REQUIREMENTS PERTAINING TO PATIENTS WHO IDENTIFY AS LGBT;
   (C) BEST PRACTICES FOR COLLECTION, STORAGE, USE,  AND  CONFIDENTIALITY
 OF INFORMATION REGARDING SEXUAL ORIENTATION AND GENDER IDENTITY;
   (D)  BEST  PRACTICES FOR TRAINING SUPPORT STAFF REGARDING TREATMENT OF
 PATIENTS WHO IDENTIFY AS LGBT AND THEIR FAMILIES; AND
   (E) UNDERSTANDING THE INTERSECTIONS BETWEEN SYSTEMS OF OPPRESSION  AND
 DISCRIMINATION,  RECOGNIZING THAT THOSE WHO IDENTIFY AS LGBT MAY EXPERI-
 ENCE THESE SYSTEMS IN VARYING DEGREES OF INTENSITY, ADDRESSING  UNDERLY-
 ING CULTURAL BIASES, AND PROVIDING NONDISCRIMINATORY CARE.
   3.  FACILITY  STAFF  REQUIRED  TO  RECEIVE TRAINING UNDER THIS SECTION
 SHALL RECEIVE THE TRAINING WITHIN SIX MONTHS OF HIRE UNLESS  THE  PERSON
 PROVIDES  PROOF  OF HAVING RECEIVED COMPARABLE TRAINING WITHIN THE PRIOR
 TWO YEARS THAT THE FACILITY DETERMINES COMPLIES WITH THIS SECTION.    IF
 THE  FACILITY  ACCEPTS THE PERSON'S PROOF OF PRIOR TRAINING, A RECORD OF
 THE CONTENT OF THE PRIOR TRAINING SUFFICIENT TO DETERMINE ITS COMPLIANCE
 WITH THIS SECTION MUST BE KEPT ON SITE AT THE FACILITY.
   4. THE DEPARTMENT OF HEALTH, IN CONJUNCTION WITH THE  OFFICE  FOR  THE
 AGING, SHALL DEVELOP AND IMPLEMENT REGULATIONS FOR THE CONDUCT OF TRAIN-
 ING AS REQUIRED BY THIS SECTION.
   §  269.  APPLICATION.  NOTHING  IN THIS ARTICLE SHOULD BE CONSTRUED TO
 IMPEDE EXISTING PROGRAMS, BENEFITS, OR PROTECTIONS FOR LGBT RESIDENTS AT
 LONG-TERM CARE FACILITIES.
   § 270. VIOLATIONS. 1.  A VIOLATION OF THE PROVISIONS OF  THIS  ARTICLE
 SHALL  BE  TREATED  AS  A  VIOLATION  UNDER SECTION TWELVE OF THE PUBLIC
 HEALTH LAW.
   2. ANY FACILITY THAT INTENTIONALLY  VIOLATES  ANY  PROVISION  OF  THIS
 ARTICLE  SHALL  BE LIABLE, IN A CIVIL ACTION OR PROCEEDING MAINTAINED BY
 ONE OF MORE RESIDENTS OF THE LONG-TERM  CARE  FACILITY,  FOR  INJUNCTIVE
 RELIEF, DAMAGES, OR ANY OTHER APPROPRIATE RELIEF IN LAW OR EQUITY. IF IT
 SHALL APPEAR TO THE SATISFACTION OF THE COURT OR JUSTICE THAT THE FACIL-
 ITY  HAS,  IN  FACT, VIOLATED A PROVISION OF THIS ARTICLE, AN INJUNCTION
 MAY BE ISSUED BY SUCH COURT OR JUSTICE, ENJOINING  AND  RESTRAINING  ANY
 FURTHER  VIOLATION,  WITHOUT  REQUIRING  PROOF  THAT ANY RESIDENT OF THE
 LONG-TERM CARE FACILITY HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY.
   § 2. This act shall take effect on the thirtieth day  after  it  shall
 have  become  a law.   Effective immediately, the addition, amendment or
 repeal of any rule or regulation necessary  for  the  implementation  of
 this  act  on  its effective date are authorized to be made on or before
 such date.

co-Sponsors

2019-S2912A - Details

See Assembly Version of this Bill:: A866
Current Committee:: Senate Aging
Law Section:: Public Health Law
Laws Affected:: Add Art 46-C §§4670 - 4677, Pub Health L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S8580, A11300
2021-2022: S85, A7807
2023-2024: S1783, A372

2019-S2912A - Summary

Establishes the lesbian, gay, bisexual, and transgender long-term care facility residents' bill of rights.

2019-S2912A - Sponsor Memo

                                
 
BILL NUMBER: S2912A

SPONSOR: HOYLMAN
 
TITLE OF BILL:  An act to amend the elder law and the public health
law, in relation to establishing the lesbian, gay, bisexual, and trans-
gender long-term care facility residents' bill of rights

 
SUMMARY OF PROVISIONS:

Section 1 of the bill amends section 203 of the Elder Law to designate
LGBT seniors and seniors living with HIV as communities of "greatest
social need" for the purposes of administering the federal older Ameri-
cans Act of 1965.

Section 2 of the bill creates a new article 46-C of the Public Health
Law entitled "Lesbian, Gay, Bisexual, and Transgender Long-Term Care
Facility Residents' Bill of Rights."

-The newly created section 4670 of the Public Health Law defines terms
used throughout the act.

-The newly created section 4671 of the Public Health Law establishes

that it is unlawful for a long-term care facility (which includes resi-
dential health care facilities, adult care facilities, and assisted
living residences) to take or fail to take certain actions wholly or
partially on the basis of a person's actual or perceived sexual orien-
tation, gender identity or expression, or HIV status.  Specifically,
these unlawful actions include:

-denying admission to a long-term care facility, transferring or refus-
ing to transfer a resident within a facility or to another facility, or
discharging or evicting a resident from a facility;

-denying a request by residents to share a room;

-where rooms are assigned by gender, assigning, reassigning, or refusing
to assign a room to a transgender resident other than in accordance with
the transgender resident's gender identity, unless at the transgender
resident's request;

-prohibiting a resident from using a restroom available to other persons
of the same gender identity, or harassing a resident who seeks to use or
does use such a restroom;

-willfully and repeatedly failing to use a resident's preferred name or
pronouns after being clearly informed of the preferred name or pronouns;

-denying a resident the right to wear or be dressed in clothing, acces-
sories, or cosmetics that are permitted for any other resident;

-restricting a resident's right to associate with other residents or
with visitors, including the right to consensual sexual relations,
unless the restriction is uniformly applied to all residents in a
nondiscriminatory manner;

-denying or restricting medical or nonmedical care that is appropriate
to a resident's organ and bodily needs.


The provisions of this section do not apply where they are incompatible
with any professionally reasonable clinical judgment.  Facilities also
be required under this section to post notices about their nondiscrimi-
nation policies with information about reporting violations to the
Office of the New York State Long-Term Care Ombudsman Program.

-The newly created section 4672 of the Public Health Law requires facil-
ities to employ procedures for recordkeeping purposes that include resi-
dents' gender identity, correct name as indicated by the resident, and
preferred pronoun as indicated by the resident.

-The newly created section 4673 of the Public Health Law requires facil-
ities to protect personally identifiable information regarding resi-
dents' sexual orientation, whether a resident is transgender, a resi-
dent's transition history, and HIV status from unauthorized disclosure
in accordance with applicable federal and state laws, and to take
reasonably necessary steps to prevent the inadvertent or incidental
disclosure of that information to other residents, visitors, or facility
staff.

-The newly created section 4674 of the Public Health Law establishes
that facility staff that aren't involved in providing direct care to
residents shall not be present during physical examinations or the
provision of personal care without the express permission of the resi-
dent or the resident's legally authorized representative.

-The newly created section 4675 of the Public Health Law requires that
at least once every two years, a long-term care facility shall ensure
that each facility staff member who works directly with residents
receives training on cultural competency focusing on patients who iden-
tify as LGBT.

-The newly created section 4676 of the Public Health Law establishes
that nothingin this article should be construed to impede existing
programs, benefits, or protections for LGBT residents at long-term care
facilities.

-The newly created section 4677 of the Public Health Law establishes
that violations of this article are to be treated as violations under
section 12 of the Public Health Law. Any long-term care facility that
intentionally violates any provision of this article shall be liable in
a civil proceeding maintained by one or more residents of the facility.

Section 3 is the effective date.

 
JUSTIFICATION:

In 2011, a study and report entitled "LGBT Older Adults in Long-Term
Care Facilities: Stories from the Field" was co-authored by the National
Senior Citizens Law center, the National Gay & Lesbian Task Force,
Services & Advocacy for GLBT Elders (SAGE), Lambda Legal, the National
Center for Lesbian Rights, and the National Center for Transgender
Equality. The report sought to "better understand the experiences of
LGBT older adults in long- term care settings," and surveyed hundreds of
LGBT seniors, family members, friends, social service providers, legal
service providers and others.


The findings of the report showed that 78% of LGBT seniors felt that
they could not be open with the staff of a long-term care facility about
their sexual orientation or gender identity, and a majority of all
respondents identified discrimination by staff (89%), discrimination by
other residents (81%), isolation from other residents (77%), and abuse
or neglect by staff (53%) as issues that LGBT seniors face in long-term
care facilities.  The LGBT Long-Term Care Facility Residents' Bill of
Rights would help address the common issues faced by many LGBT seniors
in long-term care facilities. Modeled after a recently-adopted Califor-
nia law, this bill would build on the existing protections against
discrimination found in New York's Human Rights Law by prohibiting
specific actions and inactions by long-term care facilities and their
staffs. Examples include denying admission to a long-term care facility,
transferring or denying a transfer within a facility or to another
facility, or discharging or evicting a resident from a facility wholly
or partially based on a resident's actual or perceived sexual orien-
tation, gender identity or express, or HIV status.

The Bill of Rights also establishes recordkeeping procedures for resi-
dents' specified gender identity, name, and pronoun; requires the
protection of residents' personally identifiable information and bodily
privacy; and protects residents' rights to wear or dress in clothing
permitted for other residents, be referred to by a preferred name and
pronoun, and use restrooms available to other persons of the same gender
identity.

 
LEGISLATIVE HISTORY:

2018: S.8580 (Hoylman) - Died in Aging

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become a law. Effective immediately, the addition, amendment
or repeal of any rule or regulation necessary for the implementation of
this act on its effective date are authorized to be made and completed
on or before such date.

2019-S2912A - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2912--A
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             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:
 
   Section 1.  Subdivision 1 of section 203 of the elder law  is  amended
 to read as follows:
   1. The office shall submit to the federal department of health, educa-
 tion  and  welfare a state plan for purposes of the federal older Ameri-
 cans act of 1965 and subsequent amendments thereto. The office shall  be
 the  single state agency for supervising the administration of such plan
 and shall be primarily responsible for coordination  of  state  programs
 for the aging for purposes of such federal act. The office shall act for
 the state in any negotiations relative to the submission and approval of
 such  plan and may make such arrangements, not inconsistent with law, as
 may be required by or pursuant to federal law to obtain and retain  such
 approval  and  to secure for the state the benefits of the provisions of
 such federal act.  FOR THE PURPOSES OF ADMINISTERING THE  FEDERAL  OLDER
 AMERICANS  ACT  OF  1965  AND  SUBSEQUENT  AMENDMENTS  THERETO, THE TERM
 "GREATEST SOCIAL NEED" SHALL BE INTERPRETED BY THE OFFICE TO INCLUDE THE
 LESBIAN, GAY, BISEXUAL AND TRANGENDER  SENIOR  POPULATION,  AS  WELL  AS
 SENIORS LIVING WITH HIV.
   § 2.  The public health law is amended by adding a new article 46-C to
 read as follows:
                               ARTICLE 46-C
      LESBIAN, GAY, BISEXUAL, AND TRANSGENDER LONG-TERM CARE FACILITY
                         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
 
 SECTION 4670. DEFINITIONS.
         4671. UNLAWFUL ACTIONS.
         4672. RECORDKEEPING.
         4673. PROTECTION OF PERSONALLY IDENTIFIABLE INFORMATION.
         4674. RESIDENT PRIVACY.
         4675. TRAINING.
         4676. APPLICATION.
         4677. VIOLATIONS.
   § 4670. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE:
   1."GENDER  IDENTITY  OR  EXPRESSION"  SHALL  MEAN A PERSON'S ACTUAL OR
 PERCEIVED GENDER-RELATED IDENTITY, APPEARANCE, BEHAVIOR, EXPRESSION,  OR
 OTHER  GENDER-RELATED  CHARACTERISTIC  REGARDLESS OF THE SEX ASSIGNED TO
 THAT PERSON AT BIRTH, INCLUDING, BUT NOT LIMITED TO, THE STATUS OF BEING
 TRANSGENDER.
   2. "GENDER-NONCONFORMING" SHALL MEAN A PERSON WHOSE GENDER  EXPRESSION
 DOES  NOT  CONFORM  TO  STEREOTYPICAL EXPECTATIONS OF HOW A MAN OR WOMAN
 SHOULD APPEAR OR ACT.
   3. "LGBT" SHALL MEAN LESBIAN, GAY, BISEXUAL, OR TRANSGENDER.
   4. "LONG-TERM CARE FACILITIES" OR "FACILITIES" SHALL MEAN  RESIDENTIAL
 HEALTH  CARE FACILITIES AS DEFINED IN SUBDIVISION THREE OF SECTION TWEN-
 TY-EIGHT HUNDRED ONE OF THIS CHAPTER, ADULT CARE FACILITIES  AS  DEFINED
 IN SUBDIVISION TWENTY-ONE OF SECTION TWO OF THE SOCIAL SERVICES LAW, AND
 ASSISTED  LIVING  RESIDENCES,  AS DEFINED IN ARTICLE FORTY-SIX-B OF THIS
 CHAPTER, OR ANY FACILITIES WHICH HOLD THEMSELVES OUT OR ADVERTISE  THEM-
 SELVES  AS  PROVIDING ASSISTED LIVING SERVICES AND WHICH ARE REQUIRED TO
 BE LICENSED OR CERTIFIED UNDER THE SOCIAL SERVICES LAW OR THIS CHAPTER.
   5. "LONG-TERM CARE FACILITY STAFF" OR "FACILITY STAFF" SHALL MEAN  ALL
 INDIVIDUALS EMPLOYED BY OR CONTRACTED DIRECTLY WITH THE FACILITY.
   6.  "RESIDENT"  SHALL  MEAN  A RESIDENT OR PATIENT OF A LONG-TERM CARE
 FACILITY.
   7. "TRANSITION" SHALL MEAN TO UNDERGO A  PROCESS  BY  WHICH  A  PERSON
 CHANGES  PHYSICAL  SEX CHARACTERISTICS OR GENDER EXPRESSION TO MATCH THE
 PERSON'S INNER SENSE OF BEING MALE OR FEMALE. THIS PROCESS MAY  INCLUDE,
 AMONG OTHER THINGS, A NAME CHANGE, A CHANGE IN PREFERRED PRONOUNS, AND A
 CHANGE IN SOCIAL GENDER EXPRESSION, AS INDICATED BY HAIRSTYLE, CLOTHING,
 AND  RESTROOM  USE.  TRANSITION  MAY  OR MAY NOT INCLUDE HORMONE USE AND
 SURGERY.
   § 4671. UNLAWFUL ACTIONS. 1. EXCEPT AS PROVIDED IN SUBDIVISION TWO  OF
 THIS  SECTION,  IT  SHALL  BE  UNLAWFUL FOR A LONG-TERM CARE FACILITY OR
 FACILITY STAFF TO TAKE ANY OF THE FOLLOWING ACTIONS WHOLLY OR  PARTIALLY
 FOR  A  DISCRIMINATORY  REASON  ON  THE  BASIS  OF  A PERSON'S ACTUAL OR
 PERCEIVED SEXUAL ORIENTATION, GENDER IDENTITY OR  EXPRESSION,  OR  HUMAN
 IMMUNODEFICIENCY VIRUS (HIV) STATUS:
   (A) DENY ADMISSION TO A LONG-TERM CARE FACILITY, TRANSFER OR REFUSE TO
 TRANSFER  A  RESIDENT  WITHIN  A  FACILITY  OR  TO  ANOTHER FACILITY, OR
 DISCHARGE OR EVICT A RESIDENT FROM A FACILITY;
   (B) DENY A REQUEST BY RESIDENTS TO SHARE A ROOM;
   (C) WHERE ROOMS ARE ASSIGNED  BY  GENDER,  ASSIGNING,  REASSIGNING  OR
 REFUSING  TO  ASSIGN  A  ROOM  TO  A  TRANSGENDER RESIDENT OTHER THAN IN
 ACCORDANCE WITH THE TRANSGENDER RESIDENT'S GENDER  IDENTITY,  UNLESS  AT
 THE TRANSGENDER RESIDENT'S REQUEST;
   (D)  PROHIBIT A RESIDENT FROM USING, OR HARASS A RESIDENT WHO SEEKS TO
 USE OR DOES USE, A RESTROOM AVAILABLE  TO  OTHER  PERSONS  OF  THE  SAME
 GENDER  IDENTITY,  REGARDLESS  OF  WHETHER  THE RESIDENT HAS TAKEN OR IS
 TAKING HORMONES, HAS HAD TRANSITION-RELATED  SURGERY,  OR  IS  MAKING  A
 GENDER  TRANSITION  OR  APPEARS TO BE GENDER-NONCONFORMING.   HARASSMENT

 S. 2912--A                          3
 
 INCLUDES, BUT IS NOT LIMITED TO, REQUIRING A RESIDENT TO  SHOW  IDENTITY
 DOCUMENTS  IN  ORDER  TO  GAIN ENTRANCE TO A RESTROOM AVAILABLE TO OTHER
 PERSONS OF THE SAME GENDER IDENTITY;
   (E)  WILLFULLY  AND REPEATEDLY FAIL TO USE A RESIDENT'S PREFERRED NAME
 OR PRONOUNS AFTER BEING  CLEARLY  INFORMED  OF  THE  PREFERRED  NAME  OR
 PRONOUNS, EVEN IF THE RESIDENT IS NOT PRESENT;
   (F)  DENY  A  RESIDENT  THE  RIGHT  TO WEAR OR BE DRESSED IN CLOTHING,
 ACCESSORIES, OR COSMETICS THAT ARE PERMITTED FOR ANY OTHER RESIDENT;
   (G) RESTRICT A RESIDENT'S RIGHT TO ASSOCIATE WITH OTHER  RESIDENTS  OR
 WITH  VISITORS, INCLUDING THE RIGHT TO CONSENSUAL EXPRESSION OF INTIMACY
 OR SEXUAL RELATIONS, UNLESS THE RESTRICTION IS UNIFORMLY APPLIED TO  ALL
 RESIDENTS IN A NONDISCRIMINATORY MANNER; AND
   (H)  DENY OR RESTRICT A RESIDENT FROM ACCESSING APPROPRIATE MEDICAL OR
 NONMEDICAL CARE, OR PROVIDE MEDICAL OR NONMEDICAL CARE,  THAT  UNREASON-
 ABLY DEMEANS THE RESIDENT'S DIGNITY OR CAUSES AVOIDABLE DISCOMFORT.
   2.  THE  PROVISIONS OF THIS SECTION SHALL NOT APPLY TO THE EXTENT THAT
 THEY ARE INCOMPATIBLE WITH ANY PROFESSIONALLY REASONABLE CLINICAL  JUDG-
 MENT THAT IS BASED ON ARTICULABLE FACTS OF CLINICAL SIGNIFICANCE.
   3. EACH FACILITY SHALL POST THE FOLLOWING NOTICE ALONGSIDE ITS CURRENT
 NONDISCRIMINATION  POLICY  IN ALL PLACES AND ON ALL MATERIALS WHERE THAT
 POLICY IS POSTED:  "(NAME OF FACILITY) DOES NOT  DISCRIMINATE  AND  DOES
 NOT  PERMIT  DISCRIMINATION,  INCLUDING,  BUT  NOT LIMITED TO, BULLYING,
 ABUSE, HARASSMENT, OR DIFFERENTIAL TREATMENT ON THE BASIS OF  ACTUAL  OR
 PERCEIVED  SEXUAL  ORIENTATION,  GENDER  IDENTITY  OR EXPRESSION, OR HIV
 STATUS, OR BASED ON ASSOCIATION WITH ANOTHER INDIVIDUAL  ON  ACCOUNT  OF
 THAT INDIVIDUAL'S ACTUAL OR PERCEIVED SEXUAL ORIENTATION, GENDER IDENTI-
 TY  OR  EXPRESSION,  OR  HIV  STATUS.  YOU MAY FILE A COMPLAINT WITH THE
 OFFICE OF THE NEW YORK STATE LONG-TERM CARE OMBUDSMAN  PROGRAM  (PROVIDE
 CONTACT  INFORMATION) IF YOU BELIEVE THAT YOU HAVE EXPERIENCED THIS KIND
 OF DISCRIMINATION."
   § 4672. RECORDKEEPING. 1.  A  FACILITY  SHALL  EMPLOY  PROCEDURES  FOR
 RECORDKEEPING,  INCLUDING,  BUT NOT LIMITED TO, RECORDS GENERATED AT THE
 TIME OF ADMISSION, THAT INCLUDE THE GENDER IDENTITY,  CORRECT  NAME,  AS
 INDICATED BY THE RESIDENT, AND PRONOUN OF EACH RESIDENT, AS INDICATED BY
 THE RESIDENT AND SUCH RECORDS WILL BE KEPT UP TO DATE.
   2.  THE  NEW  YORK STATE LONG-TERM CARE OMBUDSMAN PROGRAM SHALL EMPLOY
 PROCEDURES FOR RECORDKEEPING OF COMPLAINTS FILED FROM RESIDENTS OF LONG-
 TERM CARE FACILITIES PURSUANT TO THIS ARTICLE,  AND  SHALL  ESTABLISH  A
 METHOD  OF  PUBLICLY  REPORTING THESE COMPLAINTS WHILE MAINTAINING RESI-
 DENTS' INDIVIDUAL PRIVACY.
   § 4673. PROTECTION OF PERSONALLY IDENTIFIABLE  INFORMATION.  LONG-TERM
 CARE   FACILITIES  SHALL  PROTECT  PERSONALLY  IDENTIFIABLE  INFORMATION
 REGARDING RESIDENTS' SEXUAL ORIENTATION, WHETHER A RESIDENT IS TRANSGEN-
 DER, A RESIDENT'S TRANSITION HISTORY, AND HIV STATUS  FROM  UNAUTHORIZED
 DISCLOSURE,  AS REQUIRED BY THE FEDERAL HEALTH INSURANCE PORTABILITY AND
 ACCOUNTABILITY ACT OF 1996 (42 U.S.C. SEC. 300GG),  IF  APPLICABLE,  AND
 ANY OTHER APPLICABLE PROVISION OF FEDERAL OR STATE LAW. A FACILITY SHALL
 TAKE  ANY STEPS REASONABLY NECESSARY TO MINIMIZE THE LIKELIHOOD OF INAD-
 VERTENT OR INCIDENTAL DISCLOSURE OF THAT INFORMATION TO OTHER RESIDENTS,
 VISITORS, OR FACILITY STAFF, EXCEPT TO THE MINIMUM EXTENT NECESSARY  FOR
 FACILITY STAFF TO PERFORM THEIR DUTIES.
   §  4674.  RESIDENT PRIVACY. LONG-TERM CARE FACILITY STAFF NOT DIRECTLY
 INVOLVED IN PROVIDING DIRECT CARE TO  A  RESIDENT,  INCLUDING,  BUT  NOT
 LIMITED TO, A TRANSGENDER OR GENDER-NONCONFORMING RESIDENT, SHALL NOT BE
 PRESENT DURING PHYSICAL EXAMINATION OR THE PROVISION OF PERSONAL CARE TO
 THAT  RESIDENT  IF  THE RESIDENT IS PARTIALLY OR FULLY UNCLOTHED WITHOUT

 S. 2912--A                          4
 
 THE EXPRESS PERMISSION OF  THAT  RESIDENT,  OR  THE  RESIDENT'S  LEGALLY
 AUTHORIZED  REPRESENTATIVE  OR  RESPONSIBLE  PARTY. A FACILITY SHALL USE
 DOORS, CURTAINS, SCREENS, OR OTHER EFFECTIVE VISUAL BARRIERS TO  PROVIDE
 BODILY  PRIVACY FOR ALL RESIDENTS, INCLUDING, BUT NOT LIMITED TO, TRANS-
 GENDER OR GENDER-NONCONFORMING RESIDENTS, WHENEVER THEY ARE PARTIALLY OR
 FULLY UNCLOTHED. IN ADDITION, ALL RESIDENTS, INCLUDING, BUT NOT  LIMITED
 TO,  LGBT  OR  GENDER-NONCONFORMING  RESIDENTS, SHALL BE INFORMED OF AND
 HAVE THE RIGHT TO REFUSE TO BE EXAMINED, OBSERVED,  OR  TREATED  BY  ANY
 FACILITY  STAFF WHEN THE PRIMARY PURPOSE IS EDUCATIONAL OR INFORMATIONAL
 RATHER THAN THERAPEUTIC, OR FOR RESIDENT APPRAISAL OR  REAPPRAISAL,  AND
 THAT  REFUSAL  SHALL  NOT DIMINISH THE RESIDENT'S ACCESS TO CARE FOR THE
 PRIMARY PURPOSE OF DIAGNOSIS OR TREATMENT.
   § 4675. TRAINING. 1.  AT LEAST ONCE EVERY TWO YEARS, A LONG-TERM  CARE
 FACILITY SHALL ENSURE THAT EACH FACILITY STAFF MEMBER WHO WORKS DIRECTLY
 WITH  RESIDENTS  RECEIVES  TRAINING  ON  CULTURAL COMPETENCY FOCUSING ON
 PATIENTS WHO IDENTIFY AS LGBT AND PATIENTS LIVING WITH HIV.
   2.  THE INSTRUCTION REQUIRED BY SUBDIVISION ONE OF THIS SECTION  SHALL
 BE PROVIDED BY AN ENTITY OR INDIVIDUAL WITH EXPERTISE IN IDENTIFYING AND
 ADDRESSING  THE  LEGAL  AND  SOCIAL  CHALLENGES FACED BY LGBT PEOPLE AND
 PEOPLE LIVING WITH HIV AS THEY AGE AND RESIDE IN LONG-TERM CARE  FACILI-
 TIES AND SHALL TEACH ATTITUDES, KNOWLEDGE, AND SKILLS THAT ENABLE FACIL-
 ITY  STAFF  TO  CARE  EFFECTIVELY FOR RESIDENTS WHO IDENTIFY AS LGBT AND
 RESIDENTS LIVING WITH HIV, WHICH MAY INCLUDE:
   (A) UNDERSTANDING AND APPLYING RELEVANT DATA CONCERNING HEALTH DISPAR-
 ITIES AND RISK FACTORS FOR PATIENTS SEEKING CLINICAL CARE  WHO  IDENTIFY
 AS LGBT AND PATIENTS LIVING WITH HIV;
   (B) LEGAL REQUIREMENTS PERTAINING TO PATIENTS WHO IDENTIFY AS LGBT AND
 PATIENTS LIVING WITH HIV;
   (C)  BEST  PRACTICES FOR COLLECTION, STORAGE, USE, AND CONFIDENTIALITY
 OF INFORMATION REGARDING SEXUAL ORIENTATION,  GENDER  IDENTITY  AND  HIV
 STATUS;
   (D)  BEST  PRACTICES FOR TRAINING SUPPORT STAFF REGARDING TREATMENT OF
 PATIENTS WHO IDENTIFY AS LGBT OR ARE LIVING WITH HIV AND THEIR FAMILIES;
 AND
   (E) UNDERSTANDING THE INTERSECTIONS BETWEEN SYSTEMS OF OPPRESSION  AND
 DISCRIMINATION,  RECOGNIZING  THAT  THOSE  WHO  IDENTIFY  AS LGBT OR ARE
 LIVING WITH HIV MAY EXPERIENCE  THESE  SYSTEMS  IN  VARYING  DEGREES  OF
 INTENSITY,  ADDRESSING UNDERLYING CULTURAL BIASES, AND PROVIDING NONDIS-
 CRIMINATORY CARE.
   3. FACILITY STAFF REQUIRED TO  RECEIVE  TRAINING  UNDER  THIS  SECTION
 SHALL  RECEIVE  THE TRAINING WITHIN SIX MONTHS OF HIRE UNLESS THE PERSON
 PROVIDES PROOF OF HAVING RECEIVED COMPARABLE TRAINING WITHIN  THE  PRIOR
 TWO  YEARS  THAT THE FACILITY DETERMINES COMPLIES WITH THIS SECTION.  IF
 THE FACILITY ACCEPTS THE PERSON'S PROOF OF PRIOR TRAINING, A  RECORD  OF
 THE CONTENT OF THE PRIOR TRAINING SUFFICIENT TO DETERMINE ITS COMPLIANCE
 WITH THIS SECTION MUST BE KEPT ON SITE AT THE FACILITY.
   4. THE DEPARTMENT, IN CONJUNCTION WITH THE OFFICE FOR THE AGING, SHALL
 DEVELOP  AND  IMPLEMENT  REGULATIONS  FOR  THE  CONDUCT  OF  TRAINING AS
 REQUIRED BY THIS SECTION.
   § 4676. APPLICATION. NOTHING IN THIS ARTICLE SHOULD  BE  CONSTRUED  TO
 IMPEDE EXISTING PROGRAMS, BENEFITS, OR PROTECTIONS FOR LGBT RESIDENTS OR
 RESIDENTS LIVING WITH HIV AT LONG-TERM CARE FACILITIES.
   §  4677.  VIOLATIONS. 1. A VIOLATION OF THE PROVISIONS OF THIS ARTICLE
 SHALL BE TREATED AS A VIOLATION UNDER SECTION TWELVE OF THIS CHAPTER.
   2. ANY FACILITY THAT INTENTIONALLY  VIOLATES  ANY  PROVISION  OF  THIS
 ARTICLE  SHALL  BE LIABLE, IN A CIVIL ACTION OR PROCEEDING MAINTAINED BY

 S. 2912--A                          5

 ONE OF MORE RESIDENTS OF THE LONG-TERM  CARE  FACILITY,  FOR  INJUNCTIVE
 RELIEF, DAMAGES, OR ANY OTHER APPROPRIATE RELIEF IN LAW OR EQUITY. IF IT
 SHALL APPEAR TO THE SATISFACTION OF THE COURT OR JUSTICE THAT THE FACIL-
 ITY  HAS,  IN  FACT, VIOLATED A PROVISION OF THIS ARTICLE, AN INJUNCTION
 MAY BE ISSUED BY SUCH COURT OR JUSTICE, ENJOINING  AND  RESTRAINING  ANY
 FURTHER  VIOLATION,  WITHOUT  REQUIRING  PROOF  THAT ANY RESIDENT OF THE
 LONG-TERM CARE FACILITY HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY.
   § 3. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.  Effective immediately, the addition, amend-
 ment or repeal of any rule or regulation necessary for  the  implementa-
 tion  of  this  act  on its effective date are authorized to be made and
 completed on or before such date.

co-Sponsors

2019-S2912B - Details

See Assembly Version of this Bill:: A866
Current Committee:: Senate Aging
Law Section:: Public Health Law
Laws Affected:: Add Art 46-C §§4670 - 4677, Pub Health L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S8580, A11300
2021-2022: S85, A7807
2023-2024: S1783, A372

2019-S2912B - Summary

Establishes the lesbian, gay, bisexual, and transgender long-term care facility residents' bill of rights.

2019-S2912B - Sponsor Memo

                                
 
BILL NUMBER: S2912B

SPONSOR: HOYLMAN
 
TITLE OF BILL:  An act to amend the elder law and the public health
law, in relation to establishing the lesbian, gay, bisexual, and trans-
gender long-term care facility residents' bill of rights

 
SUMMARY OF PROVISIONS:

Section 1 of the bill amends section 203 of the Elder Law to designate
LGBT seniors and seniors living with HIV as communities of "greatest
social need" for the purposes of administering the federal older Ameri-
cans Act of 1965.

Section 2 of the bill creates a new article 46-C of the Public Health
Law entitled "Lesbian, Gay, Bisexual, and Transgender.Long-Term Care
Facility Residents' Bill of Rights."

- The newly created section 4670 of the Public Health Law defines terms
used throughout the act.

- The newly created section 4671 Of the Public Health Law establishes

that it is unlawful for a long-term care facility (which includes resi-
dential health care.facilities, adult care facilities, and assisted
living residences) to take or fail to take certain actions wholly or
partially on the .basis of a persons actual or perceived sexual orien-
tation, gender identity or expression, or HIV status.  Specifically,
these unlawful actions include:

- denying admission to a long-term care facility, transferring or refus-
ing to transfer a resident within a facility or to another facility, or
discharging or evicting a resident.from a facility;

- denying a request by residents to share a room;

- where rooms are assigned by gender, assigning, reassigning, or refus-
ing to assign 'a room to a transgender resident other than in accordance
with the transgender resident's gender identity, unless at the transgen-
der resident's request;

- prohibiting a resident from using a restroom available to other
persons of the same gender identity, or harassing a resident who seeks
to use or does use such a restroom;

- willfully and repeatedly failing to use a resident's preferred name or
pronouns after being clearly informed of the preferred name or pronouns;

- denying a resident the right to wear or be dressed in clothing, acces-
sories, or cosmetics that are permitted for any other resident;
-restricting a resident's right to associate with other residents or
with visitors, including the right to consensual sexual relations,
unless the restriction is uniformly applied to all residents in a
nondiscriminatory manner;

- denying or restricting medical or nonmedical care that is appropriate
to a resident's organ and bodily needs.

The provisions of this section do not apply where they are incompatible
with any professionally reasonable clinical judgment.  Facilities also
be required under this section to post notices about their nondiscrimi-
nation policies with information about reporting violations to the
Office of the New York State Long-Term Care Ombudsman Program.

- The newly created section 4672 of the Public Health Law requires
facilities to employ procedures for recordkeeping purposes that include
residents' gender identity, correct name as indicated by the resident,
and preferred pronoun as indicated by the resident.

- The newly created section 4673 of the Public Health Law requires
facilities to protect personally identifiable information regarding
residents' sexual orientation, whether a resident is transgender, a
resident's transition history, and HIV status from unauthorized disclo-
sure in accordance with applicable federal and state laws, and to take
reasonably necessary steps to'prevent the inadvertent or incidental
disclosure of that information to other residents, visitors, or facility
staff.

- The newly created .section 4674 of the Public Health Law establishes
that facility staff that aren't involved in providing direct care to
residents shall not be present during physical examinations or the
provision of personal care without the express permission of the resi-
dent or the resident's legally authorized representative.

- The newly created section 4675 of the Public Health Law requires that
at least once every two years, a long-term care facility shall ensure
that each facility staff member who works directly with residents
receives training on cultural competency focusing on patients who iden-
tify as LGBT.

- The newly created section 4676 of the Public Health Law establishes
that nothing in this article should be construed to impede existing
programs, benefits, or protections for.LGBT residents at long-term care
facilities.

- The newly created section 4677 of the Public Health Law establishes
that violations of this article are to be treated as violations under
section 12 of the Public Health Law. Any long-term care facility that
intentionally violates any provision of this article shall be liable in
a civil proceeding maintained by one or more residents of the facility.

Section 3 is the effective date.

 
JUSTIFICATION:

In 2011, a study and report entitled "LGBT Older Adults in Long-Term
Care Facilities: Stories from the Field" was co-authored by the National
Senior Citizens Law center, the National Gay & Lesbian Task Force,
Services & Advocacy for GLBT Elders (SAGE), Lambda Legal, the National
Center for Lesbian Rights, and the National Center for Transgender
Equality. The report sought to "better understand the experiences of
LGBT older adults in long- term care settings," and surveyed hundreds of
LGBT seniors, family members, friends, social service providers, legal
service providers and others.

The findings of the report showed that 78% of LGBT seniors felt that
they could not be open with the staff of a long-term care facility about
their sexual orientation or gender identity, and a majority of all
respondents identified discrimination by staff (89%), discrimination by
other residents (81%), isolation from other residents (77%), and abuse
or neglect by staff (53%) as issues that LGBT seniors face in long-term
care facilities. The LGBT Long-Term Care Facility Residents' Bill of
Rights would help address the common is sues faced by many LGBT seniors
in long-term care facilities. Modeled after a recently-adopted Califor-
nia law, this bill would build on the existing protections against
discrimination found in New York's Human Rights Law by prohibiting
specific actions and inactions by long-term care facilities and their
staffs. Examples include denying admission to a long-term care facility,
transferring or denying a transfer within a facility or to another
facility, or discharging or evicting a resident from a facility wholly
or partially based on a resident's actual or perceived sexual orien-
tation, gender identity or express, or HIV status.

The Bill of Rights also establishes recordkeeping procedures for resi-
dents' specified gender identity, name, and pronoun; requires the
protection of residents' personally identifiable information and bodily
privacy; and protects residents' rights to wear or dress in clothing
permitted for other residents, be referred to by a preferred name and
pronoun, and use restrooms available to other persons of the same gender
identity.

 
LEGISLATIVE HISTORY:

2018: 5.8580 (Hoylman) - Died in Aging

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become a law. Effective immediately, the addition, amendment
or repeal of any rule or regulation necessary for the implementation of
this act on its effective date are authorized to be made and completed
on or before such date.

2019-S2912B - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2912--B
     Cal. No. 1100
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 30, 2019
                                ___________
 
 Introduced  by  Sens. HOYLMAN, RIVERA -- read twice and ordered printed,
   and when printed to be committed to the Committee on Aging --  commit-
   tee  discharged, bill amended, ordered reprinted as amended and recom-
   mitted to said committee -- 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 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:
 
   Section 1.  Subdivision 1 of section 203 of the elder law  is  amended
 to read as follows:
   1. The office shall submit to the federal department of health, educa-
 tion  and  welfare a state plan for purposes of the federal older Ameri-
 cans act of 1965 and subsequent amendments thereto. The office shall  be
 the  single state agency for supervising the administration of such plan
 and shall be primarily responsible for coordination  of  state  programs
 for the aging for purposes of such federal act. The office shall act for
 the state in any negotiations relative to the submission and approval of
 such  plan and may make such arrangements, not inconsistent with law, as
 may be required by or pursuant to federal law to obtain and retain  such
 approval  and  to secure for the state the benefits of the provisions of
 such federal act.  FOR THE PURPOSES OF ADMINISTERING THE  FEDERAL  OLDER
 AMERICANS  ACT  OF  1965  AND  SUBSEQUENT  AMENDMENTS  THERETO, THE TERM
 "GREATEST SOCIAL NEED" SHALL BE INTERPRETED BY THE OFFICE TO INCLUDE THE
 LESBIAN, GAY, BISEXUAL AND TRANSGENDER SENIOR  POPULATION,  AS  WELL  AS
 SENIORS LIVING WITH HIV.
   § 2.  The public health law is amended by adding a new article 46-C to
 read as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD01537-06-9

 S. 2912--B                          2
 
                               ARTICLE 46-C
      LESBIAN, GAY, BISEXUAL, AND TRANSGENDER LONG-TERM CARE FACILITY
                         RESIDENTS' BILL OF RIGHTS
 SECTION 4670. DEFINITIONS.
         4671. UNLAWFUL ACTIONS.
         4672. RECORDKEEPING.
         4673. PROTECTION OF PERSONALLY IDENTIFIABLE INFORMATION.
         4674. RESIDENT PRIVACY.
         4675. TRAINING.
         4676. APPLICATION.
         4677. VIOLATIONS.
   § 4670. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE:
   1."GENDER  IDENTITY  OR  EXPRESSION"  SHALL  MEAN A PERSON'S ACTUAL OR
 PERCEIVED GENDER-RELATED IDENTITY, APPEARANCE, BEHAVIOR, EXPRESSION,  OR
 OTHER  GENDER-RELATED  CHARACTERISTIC  REGARDLESS OF THE SEX ASSIGNED TO
 THAT PERSON AT BIRTH, INCLUDING, BUT NOT LIMITED TO, THE STATUS OF BEING
 TRANSGENDER.
   2. "GENDER-NONCONFORMING" SHALL MEAN A PERSON WHOSE GENDER  EXPRESSION
 DOES  NOT  CONFORM  TO  STEREOTYPICAL EXPECTATIONS OF HOW A MAN OR WOMAN
 SHOULD APPEAR OR ACT.
   3. "LGBT" SHALL MEAN LESBIAN, GAY, BISEXUAL, OR TRANSGENDER.
   4. "LONG-TERM CARE FACILITIES" OR "FACILITIES" SHALL MEAN  RESIDENTIAL
 HEALTH  CARE FACILITIES AS DEFINED IN SUBDIVISION THREE OF SECTION TWEN-
 TY-EIGHT HUNDRED ONE OF THIS CHAPTER, ADULT CARE FACILITIES  AS  DEFINED
 IN SUBDIVISION TWENTY-ONE OF SECTION TWO OF THE SOCIAL SERVICES LAW, AND
 ASSISTED  LIVING  RESIDENCES,  AS DEFINED IN ARTICLE FORTY-SIX-B OF THIS
 CHAPTER, OR ANY FACILITIES WHICH HOLD THEMSELVES OUT OR ADVERTISE  THEM-
 SELVES  AS  PROVIDING ASSISTED LIVING SERVICES AND WHICH ARE REQUIRED TO
 BE LICENSED OR CERTIFIED UNDER THE SOCIAL SERVICES LAW OR THIS CHAPTER.
   5. "LONG-TERM CARE FACILITY STAFF" OR "FACILITY STAFF" SHALL MEAN  ALL
 INDIVIDUALS EMPLOYED BY OR CONTRACTED DIRECTLY WITH THE FACILITY.
   6.  "RESIDENT"  SHALL  MEAN  A RESIDENT OR PATIENT OF A LONG-TERM CARE
 FACILITY.
   7. "TRANSITION" SHALL MEAN TO UNDERGO A  PROCESS  BY  WHICH  A  PERSON
 CHANGES  PHYSICAL  SEX CHARACTERISTICS OR GENDER EXPRESSION TO MATCH THE
 PERSON'S INNER SENSE OF BEING MALE OR FEMALE. THIS PROCESS MAY  INCLUDE,
 AMONG OTHER THINGS, A NAME CHANGE, A CHANGE IN PREFERRED PRONOUNS, AND A
 CHANGE IN SOCIAL GENDER EXPRESSION, AS INDICATED BY HAIRSTYLE, CLOTHING,
 AND  RESTROOM  USE.  TRANSITION  MAY  OR MAY NOT INCLUDE HORMONE USE AND
 SURGERY.
   § 4671. UNLAWFUL ACTIONS. 1. EXCEPT AS PROVIDED IN SUBDIVISION TWO  OF
 THIS  SECTION,  IT  SHALL  BE  UNLAWFUL FOR A LONG-TERM CARE FACILITY OR
 FACILITY STAFF TO TAKE ANY OF THE FOLLOWING ACTIONS WHOLLY OR  PARTIALLY
 FOR  A  DISCRIMINATORY  REASON  ON  THE  BASIS  OF  A PERSON'S ACTUAL OR
 PERCEIVED SEXUAL ORIENTATION, GENDER IDENTITY OR  EXPRESSION,  OR  HUMAN
 IMMUNODEFICIENCY VIRUS (HIV) STATUS:
   (A) DENY ADMISSION TO A LONG-TERM CARE FACILITY, TRANSFER OR REFUSE TO
 TRANSFER  A  RESIDENT  WITHIN  A  FACILITY  OR  TO  ANOTHER FACILITY, OR
 DISCHARGE OR EVICT A RESIDENT FROM A FACILITY;
   (B) DENY A REQUEST BY RESIDENTS TO SHARE A ROOM;
   (C) WHERE ROOMS ARE ASSIGNED  BY  GENDER,  ASSIGNING,  REASSIGNING  OR
 REFUSING  TO  ASSIGN  A  ROOM  TO  A  TRANSGENDER RESIDENT OTHER THAN IN
 ACCORDANCE WITH THE TRANSGENDER RESIDENT'S GENDER  IDENTITY,  UNLESS  AT
 THE TRANSGENDER RESIDENT'S REQUEST;
   (D)  PROHIBIT A RESIDENT FROM USING, OR HARASS A RESIDENT WHO SEEKS TO
 USE OR DOES USE, A RESTROOM AVAILABLE  TO  OTHER  PERSONS  OF  THE  SAME

 S. 2912--B                          3
 
 GENDER  IDENTITY,  REGARDLESS  OF  WHETHER  THE RESIDENT HAS TAKEN OR IS
 TAKING HORMONES, HAS HAD TRANSITION-RELATED  SURGERY,  OR  IS  MAKING  A
 GENDER  TRANSITION  OR  APPEARS TO BE GENDER-NONCONFORMING.   HARASSMENT
 INCLUDES,  BUT  IS NOT LIMITED TO, REQUIRING A RESIDENT TO SHOW IDENTITY
 DOCUMENTS IN ORDER TO GAIN ENTRANCE TO A  RESTROOM  AVAILABLE  TO  OTHER
 PERSONS OF THE SAME GENDER IDENTITY;
   (E)  WILLFULLY  AND REPEATEDLY FAIL TO USE A RESIDENT'S PREFERRED NAME
 OR PRONOUNS AFTER BEING  CLEARLY  INFORMED  OF  THE  PREFERRED  NAME  OR
 PRONOUNS, EVEN IF THE RESIDENT IS NOT PRESENT;
   (F)  DENY  A  RESIDENT  THE  RIGHT  TO WEAR OR BE DRESSED IN CLOTHING,
 ACCESSORIES, OR COSMETICS THAT ARE PERMITTED FOR ANY OTHER RESIDENT;
   (G) RESTRICT A RESIDENT'S RIGHT TO ASSOCIATE WITH OTHER  RESIDENTS  OR
 WITH  VISITORS, INCLUDING THE RIGHT TO CONSENSUAL EXPRESSION OF INTIMACY
 OR SEXUAL RELATIONS, UNLESS THE RESTRICTION IS UNIFORMLY APPLIED TO  ALL
 RESIDENTS IN A NONDISCRIMINATORY MANNER; AND
   (H)  DENY OR RESTRICT A RESIDENT FROM ACCESSING APPROPRIATE MEDICAL OR
 NONMEDICAL CARE, OR PROVIDE MEDICAL OR NONMEDICAL CARE,  THAT  UNREASON-
 ABLY DEMEANS THE RESIDENT'S DIGNITY OR CAUSES AVOIDABLE DISCOMFORT.
   2.  THE  PROVISIONS OF THIS SECTION SHALL NOT APPLY TO THE EXTENT THAT
 THEY ARE INCOMPATIBLE WITH ANY PROFESSIONALLY REASONABLE CLINICAL  JUDG-
 MENT THAT IS BASED ON ARTICULABLE FACTS OF CLINICAL SIGNIFICANCE.
   3. EACH FACILITY SHALL POST THE FOLLOWING NOTICE ALONGSIDE ITS CURRENT
 NONDISCRIMINATION  POLICY  IN ALL PLACES AND ON ALL MATERIALS WHERE THAT
 POLICY IS POSTED:  "(NAME OF FACILITY) DOES NOT  DISCRIMINATE  AND  DOES
 NOT  PERMIT  DISCRIMINATION,  INCLUDING,  BUT  NOT LIMITED TO, BULLYING,
 ABUSE, HARASSMENT, OR DIFFERENTIAL TREATMENT ON THE BASIS OF  ACTUAL  OR
 PERCEIVED  SEXUAL  ORIENTATION,  GENDER  IDENTITY  OR EXPRESSION, OR HIV
 STATUS, OR BASED ON ASSOCIATION WITH ANOTHER INDIVIDUAL  ON  ACCOUNT  OF
 THAT INDIVIDUAL'S ACTUAL OR PERCEIVED SEXUAL ORIENTATION, GENDER IDENTI-
 TY  OR  EXPRESSION,  OR  HIV  STATUS.  YOU MAY FILE A COMPLAINT WITH THE
 OFFICE OF THE NEW YORK STATE LONG-TERM CARE OMBUDSMAN  PROGRAM  (PROVIDE
 CONTACT  INFORMATION) IF YOU BELIEVE THAT YOU HAVE EXPERIENCED THIS KIND
 OF DISCRIMINATION."
   § 4672. RECORDKEEPING. 1.  A  FACILITY  SHALL  EMPLOY  PROCEDURES  FOR
 RECORDKEEPING,  INCLUDING,  BUT NOT LIMITED TO, RECORDS GENERATED AT THE
 TIME OF ADMISSION, THAT INCLUDE THE GENDER IDENTITY,  CORRECT  NAME,  AS
 INDICATED BY THE RESIDENT, AND PRONOUN OF EACH RESIDENT, AS INDICATED BY
 THE RESIDENT AND SUCH RECORDS WILL BE KEPT UP TO DATE.
   2.  THE  NEW  YORK STATE LONG-TERM CARE OMBUDSMAN PROGRAM SHALL EMPLOY
 PROCEDURES FOR RECORDKEEPING OF COMPLAINTS FILED FROM RESIDENTS OF LONG-
 TERM CARE FACILITIES PURSUANT TO THIS ARTICLE,  AND  SHALL  ESTABLISH  A
 METHOD  OF  PUBLICLY  REPORTING THESE COMPLAINTS WHILE MAINTAINING RESI-
 DENTS' INDIVIDUAL PRIVACY.
   § 4673. PROTECTION OF PERSONALLY IDENTIFIABLE  INFORMATION.  LONG-TERM
 CARE   FACILITIES  SHALL  PROTECT  PERSONALLY  IDENTIFIABLE  INFORMATION
 REGARDING RESIDENTS' SEXUAL ORIENTATION, WHETHER A RESIDENT IS TRANSGEN-
 DER, A RESIDENT'S TRANSITION HISTORY, AND HIV STATUS  FROM  UNAUTHORIZED
 DISCLOSURE,  AS REQUIRED BY THE FEDERAL HEALTH INSURANCE PORTABILITY AND
 ACCOUNTABILITY ACT OF 1996 (42 U.S.C. SEC. 300GG),  IF  APPLICABLE,  AND
 ANY OTHER APPLICABLE PROVISION OF FEDERAL OR STATE LAW. A FACILITY SHALL
 TAKE  ANY STEPS REASONABLY NECESSARY TO MINIMIZE THE LIKELIHOOD OF INAD-
 VERTENT OR INCIDENTAL DISCLOSURE OF THAT INFORMATION TO OTHER RESIDENTS,
 VISITORS, OR FACILITY STAFF, EXCEPT TO THE MINIMUM EXTENT NECESSARY  FOR
 FACILITY STAFF TO PERFORM THEIR DUTIES.
   §  4674.  RESIDENT PRIVACY. LONG-TERM CARE FACILITY STAFF NOT DIRECTLY
 INVOLVED IN PROVIDING DIRECT CARE TO  A  RESIDENT,  INCLUDING,  BUT  NOT

 S. 2912--B                          4
 
 LIMITED TO, A TRANSGENDER OR GENDER-NONCONFORMING RESIDENT, SHALL NOT BE
 PRESENT DURING PHYSICAL EXAMINATION OR THE PROVISION OF PERSONAL CARE TO
 THAT  RESIDENT  IF  THE RESIDENT IS PARTIALLY OR FULLY UNCLOTHED WITHOUT
 THE  EXPRESS  PERMISSION  OF  THAT  RESIDENT,  OR THE RESIDENT'S LEGALLY
 AUTHORIZED REPRESENTATIVE OR RESPONSIBLE PARTY.  A  FACILITY  SHALL  USE
 DOORS,  CURTAINS, SCREENS, OR OTHER EFFECTIVE VISUAL BARRIERS TO PROVIDE
 BODILY PRIVACY FOR ALL RESIDENTS, INCLUDING, BUT NOT LIMITED TO,  TRANS-
 GENDER OR GENDER-NONCONFORMING RESIDENTS, WHENEVER THEY ARE PARTIALLY OR
 FULLY  UNCLOTHED. IN ADDITION, ALL RESIDENTS, INCLUDING, BUT NOT LIMITED
 TO, LGBT OR GENDER-NONCONFORMING RESIDENTS, SHALL  BE  INFORMED  OF  AND
 HAVE  THE  RIGHT  TO  REFUSE TO BE EXAMINED, OBSERVED, OR TREATED BY ANY
 FACILITY STAFF WHEN THE PRIMARY PURPOSE IS EDUCATIONAL OR  INFORMATIONAL
 RATHER  THAN  THERAPEUTIC, OR FOR RESIDENT APPRAISAL OR REAPPRAISAL, AND
 THAT REFUSAL SHALL NOT DIMINISH THE RESIDENT'S ACCESS TO  CARE  FOR  THE
 PRIMARY PURPOSE OF DIAGNOSIS OR TREATMENT.
   §  4675. TRAINING. 1.  AT LEAST ONCE EVERY TWO YEARS, A LONG-TERM CARE
 FACILITY SHALL ENSURE THAT EACH FACILITY STAFF MEMBER WHO WORKS DIRECTLY
 WITH RESIDENTS RECEIVES TRAINING  ON  CULTURAL  COMPETENCY  FOCUSING  ON
 PATIENTS WHO IDENTIFY AS LGBT AND PATIENTS LIVING WITH HIV.
   2.   THE INSTRUCTION REQUIRED BY SUBDIVISION ONE OF THIS SECTION SHALL
 BE PROVIDED BY AN ENTITY OR INDIVIDUAL WITH EXPERTISE IN IDENTIFYING AND
 ADDRESSING THE LEGAL AND SOCIAL CHALLENGES  FACED  BY  LGBT  PEOPLE  AND
 PEOPLE  LIVING WITH HIV AS THEY AGE AND RESIDE IN LONG-TERM CARE FACILI-
 TIES AND SHALL TEACH ATTITUDES, KNOWLEDGE, AND SKILLS THAT ENABLE FACIL-
 ITY STAFF TO CARE EFFECTIVELY FOR RESIDENTS WHO  IDENTIFY  AS  LGBT  AND
 RESIDENTS LIVING WITH HIV, WHICH MAY INCLUDE:
   (A) UNDERSTANDING AND APPLYING RELEVANT DATA CONCERNING HEALTH DISPAR-
 ITIES  AND  RISK FACTORS FOR PATIENTS SEEKING CLINICAL CARE WHO IDENTIFY
 AS LGBT AND PATIENTS LIVING WITH HIV;
   (B) LEGAL REQUIREMENTS PERTAINING TO PATIENTS WHO IDENTIFY AS LGBT AND
 PATIENTS LIVING WITH HIV;
   (C) BEST PRACTICES FOR COLLECTION, STORAGE, USE,  AND  CONFIDENTIALITY
 OF  INFORMATION  REGARDING  SEXUAL  ORIENTATION, GENDER IDENTITY AND HIV
 STATUS;
   (D) BEST PRACTICES FOR TRAINING SUPPORT STAFF REGARDING  TREATMENT  OF
 PATIENTS WHO IDENTIFY AS LGBT OR ARE LIVING WITH HIV AND THEIR FAMILIES;
 AND
   (E)  UNDERSTANDING THE INTERSECTIONS BETWEEN SYSTEMS OF OPPRESSION AND
 DISCRIMINATION, RECOGNIZING THAT THOSE  WHO  IDENTIFY  AS  LGBT  OR  ARE
 LIVING  WITH  HIV  MAY  EXPERIENCE  THESE  SYSTEMS IN VARYING DEGREES OF
 INTENSITY, ADDRESSING UNDERLYING CULTURAL BIASES, AND PROVIDING  NONDIS-
 CRIMINATORY CARE.
   3.  FACILITY  STAFF  REQUIRED  TO  RECEIVE TRAINING UNDER THIS SECTION
 SHALL RECEIVE THE TRAINING WITHIN SIX MONTHS OF HIRE UNLESS  THE  PERSON
 PROVIDES  PROOF  OF HAVING RECEIVED COMPARABLE TRAINING WITHIN THE PRIOR
 TWO YEARS THAT THE FACILITY DETERMINES COMPLIES WITH THIS SECTION.    IF
 THE  FACILITY  ACCEPTS THE PERSON'S PROOF OF PRIOR TRAINING, A RECORD OF
 THE CONTENT OF THE PRIOR TRAINING SUFFICIENT TO DETERMINE ITS COMPLIANCE
 WITH THIS SECTION MUST BE KEPT ON SITE AT THE FACILITY.
   4. THE DEPARTMENT, IN CONJUNCTION WITH THE OFFICE FOR THE AGING, SHALL
 DEVELOP AND  IMPLEMENT  REGULATIONS  FOR  THE  CONDUCT  OF  TRAINING  AS
 REQUIRED BY THIS SECTION.
   §  4676.  APPLICATION.  NOTHING IN THIS ARTICLE SHOULD BE CONSTRUED TO
 IMPEDE EXISTING PROGRAMS, BENEFITS, OR PROTECTIONS FOR LGBT RESIDENTS OR
 RESIDENTS LIVING WITH HIV AT LONG-TERM CARE FACILITIES.

 S. 2912--B                          5
 
   § 4677. VIOLATIONS. 1. A VIOLATION OF THE PROVISIONS OF  THIS  ARTICLE
 SHALL BE TREATED AS A VIOLATION UNDER SECTION TWELVE OF THIS CHAPTER.
   2.  ANY  FACILITY  THAT  INTENTIONALLY  VIOLATES ANY PROVISION OF THIS
 ARTICLE SHALL BE LIABLE, IN A CIVIL ACTION OR PROCEEDING  MAINTAINED  BY
 ONE  OF  MORE  RESIDENTS  OF THE LONG-TERM CARE FACILITY, FOR INJUNCTIVE
 RELIEF, DAMAGES, OR ANY OTHER APPROPRIATE RELIEF IN LAW OR EQUITY. IF IT
 SHALL APPEAR TO THE SATISFACTION OF THE COURT OR JUSTICE THAT THE FACIL-
 ITY HAS, IN FACT, VIOLATED A PROVISION OF THIS  ARTICLE,  AN  INJUNCTION
 MAY  BE  ISSUED  BY SUCH COURT OR JUSTICE, ENJOINING AND RESTRAINING ANY
 FURTHER VIOLATION, WITHOUT REQUIRING PROOF  THAT  ANY  RESIDENT  OF  THE
 LONG-TERM CARE FACILITY HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY.
   § 3. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.  Effective immediately, the addition, amend-
 ment and/or repeal of any rule or regulation necessary for the implemen-
 tation  of  this act on its effective date are authorized to be made and
 completed on or before such date.

co-Sponsors

View additional co-sponsors

2019-S2912C (ACTIVE) - Details

See Assembly Version of this Bill:: A866
Current Committee:: Senate Aging
Law Section:: Public Health Law
Laws Affected:: Add Art 46-C §§4670 - 4677, Pub Health L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S8580, A11300
2021-2022: S85, A7807
2023-2024: S1783, A372

2019-S2912C (ACTIVE) - Summary

Establishes the lesbian, gay, bisexual, and transgender long-term care facility residents' bill of rights.

2019-S2912C (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S2912C

SPONSOR: HOYLMAN
 
TITLE OF BILL:

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

 
SUMMARY OF PROVISIONS:

Section 1 of the bill creates a new article 46-C of the Public Health
Law entitled "Lesbian, Gay, Bisexual, and Transgender.Long-Term Care
Facility Residents' Bill of Rights."

- The newly created section 4670 of the Public Health Law defines terms
used throughout the act.

- The newly created section 4671 Of the Public Health Law establishes
that it is unlawful for a long-term care facility (which includes resi-
dential health care.facilities, adult care facilities, and assisted
living residences) to take or fail to take certain actions wholly or

partially on the .basis of a persons actual or perceived sexual orien-
tation, gender identity or expression, or HIV status.  Specifically,
these unlawful actions include:

- denying admission to a long-term care facility, transferring or refus-
ing to transfer a resident within a facility or to another facility, or
discharging or evicting a resident.from a facility;

- denying a request by residents to share a room;

- where rooms are assigned by gender, assigning, reassigning, or refus-
ing to assign 'a room to a transgender resident other than in accordance
with the transgender resident's gender identity, unless at the transgen-
der resident's request;

- prohibiting a resident from using a restroom available to other
persons of the same gender identity, or harassing a resident who seeks
to use or does use such a restroom;

- willfully and repeatedly failing to use a resident's preferred name or
pronouns after being clearly informed of the preferred name or pronouns;

- denying a resident the right to wear or be dressed in clothing, acces-
sories, or cosmetics that are permitted for any other resident;

- restricting a resident's right to associate with other residents or
with visitors, including the right to consensual sexual relations,
unless the restriction is uniformly applied to all residents in a
nondiscriminatory manner;

- denying or restricting medical or nonmedical care that is appropriate
to a resident's organ and bodily needs.

The provisions of this section do not apply where they are incompatible
with any professionally reasonable clinical judgment.  Facilities also
be required under this section to post notices about their nondiscrimi-

nation policies with information about reporting violations to the
Office of the New York State Long-Term Care Ombudsman Program.

- The newly created section 4672 of the Public Health Law requires
facilities to employ procedures for recordkeeping purposes that include
residents' gender identity, correct name as indicated by the resident,
and preferred pronoun as indicated by the resident.

- The newly created section 4673 of the Public Health Law requires
facilities to protect personally identifiable information regarding
residents' sexual orientation, whether a resident is transgender, a
resident's transition history, and HIV status from unauthorized disclo-
sure in accordance with applicable federal and state laws, and to take
reasonably necessary steps to prevent the inadvertent or incidental
disclosure of that information to other residents, visitors, or facility
staff.

- The newly created .section 4674 of the Public Health Law establishes
that facility staff that aren't involved in providing direct care to
residents shall not be present during physical examinations or the
provision of personal care without the express permission of the resi-
dent or the resident's legally authorized representative.

- The newly created section 4675 of the Public Health Law requires that
at least once every two years, a long-term care facility shall ensure
that each facility staff member who works directly with residents
receives training on cultural competency focusing on patients who iden-
tify as LGBT.

- The newly created section 4676 of the Public Health Law establishes
that nothing in this article should be construed to impede existing
programs, benefits, or protections for LGBT residents at long-term care
facilities.

- The newly created section 4677 of the Public Health Law establishes
that violations of this article are to be treated as violations under
section 12 of the Public Health Law. Any long-term care facility that
intentionally violates any provision of this article shall be liable in
a civil proceeding maintained by one or more residents of the facility.

Section 2 of the bill is the effective date.

 
JUSTIFICATION:

In 2011, a study and report entitled "LGBT Older Adults in Long-Term
Care Facilities: Stories from the Field" was co-authored by the National
Senior Citizens Law center, the National Gay & Lesbian Task Force,
Services & Advocacy for GLBT Elders (SAGE), Lambda Legal, the National
Center for Lesbian Rights, and the National Center for Transgender
Equality. The report sought to "better understand the experiences of
LGBT older adults in long- term care settings," and surveyed hundreds of
LGBT seniors, family members, friends, social service providers, legal
service providers and others.

The findings of the report showed that 78% of LGBT seniors felt that
they could not be open with the staff of a long-term care facility about
their sexual orientation or gender identity, and a majority of all
respondents identified discrimination by staff (89%), discrimination by
other residents (81%), isolation from other residents (77%), and abuse
or neglect by staff (53%) as issues that LGBT seniors face in long-term
care facilities. The LGBT Long-Term Care Facility Residents' Bill of
Rights would help address the common is sues faced by many LGBT seniors
in long-term care facilities.  Modeled after a recently-adopted Califor-
nia law, this bill would build on the existing protections against
discrimination found in New York's Human Rights Law by prohibiting
specific actions and inactions by long-term care facilities and their
staffs. Examples include denying admission to a long-term care facility,
transferring or denying a transfer within a facility or to another
facility, or discharging or evicting a resident from a facility wholly
or partially based on a resident's actual or perceived sexual orien-
tation, gender identity or express, or HIV status.

The Bill of Rights also establishes recordkeeping procedures for resi-
dents' specified gender identity, name, and pronoun; requires the
protection of residents' personally identifiable information and bodily
privacy; and protects residents' rights to wear or dress in clothing
permitted for other residents, be referred to by a preferred name and
pronoun, and use restrooms available to other persons of the same gender
identity.

 
LEGISLATIVE HISTORY:

2018: 5.8580 (Hoylman) - Died in Aging

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become a law. Effective immediately, the addition, amendment
or repeal of any rule or regulation necessary for the implementation of
this act on its effective date.

2019-S2912C (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2912--C
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 30, 2019
                                ___________
 
 Introduced  by Sens. HOYLMAN, KENNEDY, RIVERA, SKOUFIS -- 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 -- 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 -- recommitted to the  Committee  on  Aging  in
   accordance  with  Senate  Rule 6, sec. 8 -- committee discharged, bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee
 
 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:
 
   Section 1.  The public health law is amended by adding a  new  article
 46-C to read as follows:
                               ARTICLE 46-C
      LESBIAN, GAY, BISEXUAL, AND TRANSGENDER LONG-TERM CARE FACILITY
                         RESIDENTS' BILL OF RIGHTS
 SECTION 4670. DEFINITIONS.
         4671. UNLAWFUL ACTIONS.
         4672. RECORDKEEPING.
         4673. PROTECTION OF PERSONALLY IDENTIFIABLE INFORMATION.
         4674. RESIDENT PRIVACY.
         4675. TRAINING.
         4676. APPLICATION.
         4677. VIOLATIONS.
   § 4670. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE:
   1."GENDER  IDENTITY  OR  EXPRESSION"  SHALL  MEAN A PERSON'S ACTUAL OR
 PERCEIVED GENDER-RELATED IDENTITY, APPEARANCE, BEHAVIOR, EXPRESSION,  OR
 OTHER  GENDER-RELATED  CHARACTERISTIC  REGARDLESS OF THE SEX ASSIGNED TO
 THAT PERSON AT BIRTH, INCLUDING, BUT NOT LIMITED TO, THE STATUS OF BEING
 TRANSGENDER.

 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01537-08-0

 S. 2912--C                          2
 
   2. "GENDER-NONCONFORMING" SHALL MEAN A PERSON WHOSE GENDER  EXPRESSION
 DOES  NOT  CONFORM  TO  STEREOTYPICAL EXPECTATIONS OF HOW A MAN OR WOMAN
 SHOULD APPEAR OR ACT.
   3. "LGBT" SHALL MEAN LESBIAN, GAY, BISEXUAL, OR TRANSGENDER.
   4.  "LONG-TERM CARE FACILITIES" OR "FACILITIES" SHALL MEAN RESIDENTIAL
 HEALTH CARE FACILITIES AS DEFINED IN SUBDIVISION THREE OF SECTION  TWEN-
 TY-EIGHT  HUNDRED  ONE OF THIS CHAPTER, ADULT CARE FACILITIES AS DEFINED
 IN SUBDIVISION TWENTY-ONE OF SECTION TWO OF THE SOCIAL SERVICES LAW, AND
 ASSISTED LIVING RESIDENCES, AS DEFINED IN ARTICLE  FORTY-SIX-B  OF  THIS
 CHAPTER,  OR ANY FACILITIES WHICH HOLD THEMSELVES OUT OR ADVERTISE THEM-
 SELVES AS PROVIDING ASSISTED LIVING SERVICES AND WHICH ARE  REQUIRED  TO
 BE LICENSED OR CERTIFIED UNDER THE SOCIAL SERVICES LAW OR THIS CHAPTER.
   5.  "LONG-TERM CARE FACILITY STAFF" OR "FACILITY STAFF" SHALL MEAN ALL
 INDIVIDUALS EMPLOYED BY OR CONTRACTED DIRECTLY WITH THE FACILITY.
   6. "RESIDENT" SHALL MEAN A RESIDENT OR PATIENT  OF  A  LONG-TERM  CARE
 FACILITY.
   7.  "TRANSITION"  SHALL  MEAN  TO  UNDERGO A PROCESS BY WHICH A PERSON
 CHANGES PHYSICAL SEX CHARACTERISTICS OR GENDER EXPRESSION TO  MATCH  THE
 PERSON'S  INNER SENSE OF BEING MALE OR FEMALE. THIS PROCESS MAY INCLUDE,
 AMONG OTHER THINGS, A NAME CHANGE, A CHANGE IN PREFERRED PRONOUNS, AND A
 CHANGE IN SOCIAL GENDER EXPRESSION, AS INDICATED BY HAIRSTYLE, CLOTHING,
 AND RESTROOM USE. TRANSITION MAY OR MAY  NOT  INCLUDE  HORMONE  USE  AND
 SURGERY.
   §  4671. UNLAWFUL ACTIONS. 1. EXCEPT AS PROVIDED IN SUBDIVISION TWO OF
 THIS SECTION, IT SHALL BE UNLAWFUL FOR  A  LONG-TERM  CARE  FACILITY  OR
 FACILITY  STAFF TO TAKE ANY OF THE FOLLOWING ACTIONS WHOLLY OR PARTIALLY
 FOR A DISCRIMINATORY REASON  ON  THE  BASIS  OF  A  PERSON'S  ACTUAL  OR
 PERCEIVED  SEXUAL  ORIENTATION,  GENDER IDENTITY OR EXPRESSION, OR HUMAN
 IMMUNODEFICIENCY VIRUS (HIV) STATUS:
   (A) DENY ADMISSION TO A LONG-TERM CARE FACILITY, TRANSFER OR REFUSE TO
 TRANSFER A RESIDENT  WITHIN  A  FACILITY  OR  TO  ANOTHER  FACILITY,  OR
 DISCHARGE OR EVICT A RESIDENT FROM A FACILITY;
   (B) DENY A REQUEST BY RESIDENTS TO SHARE A ROOM;
   (C)  WHERE  ROOMS  ARE  ASSIGNED  BY GENDER, ASSIGNING, REASSIGNING OR
 REFUSING TO ASSIGN A ROOM  TO  A  TRANSGENDER  RESIDENT  OTHER  THAN  IN
 ACCORDANCE  WITH  THE  TRANSGENDER RESIDENT'S GENDER IDENTITY, UNLESS AT
 THE TRANSGENDER RESIDENT'S REQUEST;
   (D) PROHIBIT A RESIDENT FROM USING, OR HARASS A RESIDENT WHO SEEKS  TO
 USE  OR  DOES  USE,  A  RESTROOM  AVAILABLE TO OTHER PERSONS OF THE SAME
 GENDER IDENTITY, REGARDLESS OF WHETHER THE  RESIDENT  HAS  TAKEN  OR  IS
 TAKING  HORMONES,  HAS  HAD  TRANSITION-RELATED  SURGERY, OR IS MAKING A
 GENDER TRANSITION OR APPEARS TO  BE  GENDER-NONCONFORMING.    HARASSMENT
 INCLUDES,  BUT  IS NOT LIMITED TO, REQUIRING A RESIDENT TO SHOW IDENTITY
 DOCUMENTS IN ORDER TO GAIN ENTRANCE TO A  RESTROOM  AVAILABLE  TO  OTHER
 PERSONS OF THE SAME GENDER IDENTITY;
   (E)  WILLFULLY  AND REPEATEDLY FAIL TO USE A RESIDENT'S PREFERRED NAME
 OR PRONOUNS AFTER BEING  CLEARLY  INFORMED  OF  THE  PREFERRED  NAME  OR
 PRONOUNS, EVEN IF THE RESIDENT IS NOT PRESENT;
   (F)  DENY  A  RESIDENT  THE  RIGHT  TO WEAR OR BE DRESSED IN CLOTHING,
 ACCESSORIES, OR COSMETICS THAT ARE PERMITTED FOR ANY OTHER RESIDENT;
   (G) RESTRICT A RESIDENT'S RIGHT TO ASSOCIATE WITH OTHER  RESIDENTS  OR
 WITH  VISITORS, INCLUDING THE RIGHT TO CONSENSUAL EXPRESSION OF INTIMACY
 OR SEXUAL RELATIONS, UNLESS THE RESTRICTION IS UNIFORMLY APPLIED TO  ALL
 RESIDENTS IN A NONDISCRIMINATORY MANNER; AND

 S. 2912--C                          3
 
   (H)  DENY OR RESTRICT A RESIDENT FROM ACCESSING APPROPRIATE MEDICAL OR
 NONMEDICAL CARE, OR PROVIDE MEDICAL OR NONMEDICAL CARE,  THAT  UNREASON-
 ABLY DEMEANS THE RESIDENT'S DIGNITY OR CAUSES AVOIDABLE DISCOMFORT.
   2.  THE  PROVISIONS OF THIS SECTION SHALL NOT APPLY TO THE EXTENT THAT
 THEY ARE INCOMPATIBLE WITH ANY PROFESSIONALLY REASONABLE CLINICAL  JUDG-
 MENT THAT IS BASED ON ARTICULABLE FACTS OF CLINICAL SIGNIFICANCE.
   3. EACH FACILITY SHALL POST THE FOLLOWING NOTICE ALONGSIDE ITS CURRENT
 NONDISCRIMINATION  POLICY  IN ALL PLACES AND ON ALL MATERIALS WHERE THAT
 POLICY IS POSTED:  "(NAME OF FACILITY) DOES NOT  DISCRIMINATE  AND  DOES
 NOT  PERMIT  DISCRIMINATION,  INCLUDING,  BUT  NOT LIMITED TO, BULLYING,
 ABUSE, HARASSMENT, OR DIFFERENTIAL TREATMENT ON THE BASIS OF  ACTUAL  OR
 PERCEIVED  SEXUAL  ORIENTATION,  GENDER  IDENTITY  OR EXPRESSION, OR HIV
 STATUS, OR BASED ON ASSOCIATION WITH ANOTHER INDIVIDUAL  ON  ACCOUNT  OF
 THAT INDIVIDUAL'S ACTUAL OR PERCEIVED SEXUAL ORIENTATION, GENDER IDENTI-
 TY  OR  EXPRESSION,  OR  HIV  STATUS.  YOU MAY FILE A COMPLAINT WITH THE
 OFFICE OF THE NEW YORK STATE LONG-TERM CARE OMBUDSMAN  PROGRAM  (PROVIDE
 CONTACT  INFORMATION) IF YOU BELIEVE THAT YOU HAVE EXPERIENCED THIS KIND
 OF DISCRIMINATION."
   § 4672. RECORDKEEPING. 1.  A  FACILITY  SHALL  EMPLOY  PROCEDURES  FOR
 RECORDKEEPING,  INCLUDING,  BUT NOT LIMITED TO, RECORDS GENERATED AT THE
 TIME OF ADMISSION, THAT INCLUDE THE GENDER IDENTITY,  CORRECT  NAME,  AS
 INDICATED BY THE RESIDENT, AND PRONOUN OF EACH RESIDENT, AS INDICATED BY
 THE RESIDENT AND SUCH RECORDS WILL BE KEPT UP TO DATE.
   2.  THE  NEW  YORK STATE LONG-TERM CARE OMBUDSMAN PROGRAM SHALL EMPLOY
 PROCEDURES FOR RECORDKEEPING OF COMPLAINTS FILED FROM RESIDENTS OF LONG-
 TERM CARE FACILITIES PURSUANT TO THIS ARTICLE,  AND  SHALL  ESTABLISH  A
 METHOD  OF  PUBLICLY  REPORTING THESE COMPLAINTS WHILE MAINTAINING RESI-
 DENTS' INDIVIDUAL PRIVACY.
   § 4673. PROTECTION OF PERSONALLY IDENTIFIABLE  INFORMATION.  LONG-TERM
 CARE   FACILITIES  SHALL  PROTECT  PERSONALLY  IDENTIFIABLE  INFORMATION
 REGARDING RESIDENTS' SEXUAL ORIENTATION, WHETHER A RESIDENT IS TRANSGEN-
 DER, A RESIDENT'S TRANSITION HISTORY, AND HIV STATUS  FROM  UNAUTHORIZED
 DISCLOSURE,  AS REQUIRED BY THE FEDERAL HEALTH INSURANCE PORTABILITY AND
 ACCOUNTABILITY ACT OF 1996 (42 U.S.C. SEC. 300GG),  IF  APPLICABLE,  AND
 ANY OTHER APPLICABLE PROVISION OF FEDERAL OR STATE LAW. A FACILITY SHALL
 TAKE  ANY STEPS REASONABLY NECESSARY TO MINIMIZE THE LIKELIHOOD OF INAD-
 VERTENT OR INCIDENTAL DISCLOSURE OF THAT INFORMATION TO OTHER RESIDENTS,
 VISITORS, OR FACILITY STAFF, EXCEPT TO THE MINIMUM EXTENT NECESSARY  FOR
 FACILITY STAFF TO PERFORM THEIR DUTIES.
   §  4674.  RESIDENT PRIVACY. LONG-TERM CARE FACILITY STAFF NOT DIRECTLY
 INVOLVED IN PROVIDING DIRECT CARE TO  A  RESIDENT,  INCLUDING,  BUT  NOT
 LIMITED TO, A TRANSGENDER OR GENDER-NONCONFORMING RESIDENT, SHALL NOT BE
 PRESENT DURING PHYSICAL EXAMINATION OR THE PROVISION OF PERSONAL CARE TO
 THAT  RESIDENT  IF  THE RESIDENT IS PARTIALLY OR FULLY UNCLOTHED WITHOUT
 THE EXPRESS PERMISSION OF  THAT  RESIDENT,  OR  THE  RESIDENT'S  LEGALLY
 AUTHORIZED  REPRESENTATIVE  OR  RESPONSIBLE  PARTY. A FACILITY SHALL USE
 DOORS, CURTAINS, SCREENS, OR OTHER EFFECTIVE VISUAL BARRIERS TO  PROVIDE
 BODILY  PRIVACY FOR ALL RESIDENTS, INCLUDING, BUT NOT LIMITED TO, TRANS-
 GENDER OR GENDER-NONCONFORMING RESIDENTS, WHENEVER THEY ARE PARTIALLY OR
 FULLY UNCLOTHED. IN ADDITION, ALL RESIDENTS, INCLUDING, BUT NOT  LIMITED
 TO,  LGBT  OR  GENDER-NONCONFORMING  RESIDENTS, SHALL BE INFORMED OF AND
 HAVE THE RIGHT TO REFUSE TO BE EXAMINED, OBSERVED,  OR  TREATED  BY  ANY
 FACILITY  STAFF WHEN THE PRIMARY PURPOSE IS EDUCATIONAL OR INFORMATIONAL
 RATHER THAN THERAPEUTIC, OR FOR RESIDENT APPRAISAL OR  REAPPRAISAL,  AND
 THAT  REFUSAL  SHALL  NOT DIMINISH THE RESIDENT'S ACCESS TO CARE FOR THE
 PRIMARY PURPOSE OF DIAGNOSIS OR TREATMENT.

 S. 2912--C                          4
 
   § 4675. TRAINING. 1.  AT LEAST ONCE EVERY TWO YEARS, A LONG-TERM  CARE
 FACILITY SHALL ENSURE THAT EACH FACILITY STAFF MEMBER WHO WORKS DIRECTLY
 WITH  RESIDENTS  RECEIVES  TRAINING  ON  CULTURAL COMPETENCY FOCUSING ON
 PATIENTS WHO IDENTIFY AS LGBT AND PATIENTS LIVING WITH HIV.
   2.   THE INSTRUCTION REQUIRED BY SUBDIVISION ONE OF THIS SECTION SHALL
 BE PROVIDED BY AN ENTITY OR INDIVIDUAL WITH EXPERTISE IN IDENTIFYING AND
 ADDRESSING THE LEGAL AND SOCIAL CHALLENGES  FACED  BY  LGBT  PEOPLE  AND
 PEOPLE  LIVING WITH HIV AS THEY AGE AND RESIDE IN LONG-TERM CARE FACILI-
 TIES AND SHALL TEACH ATTITUDES, KNOWLEDGE, AND SKILLS THAT ENABLE FACIL-
 ITY STAFF TO CARE EFFECTIVELY FOR RESIDENTS WHO  IDENTIFY  AS  LGBT  AND
 RESIDENTS LIVING WITH HIV, WHICH MAY INCLUDE:
   (A) UNDERSTANDING AND APPLYING RELEVANT DATA CONCERNING HEALTH DISPAR-
 ITIES  AND  RISK FACTORS FOR PATIENTS SEEKING CLINICAL CARE WHO IDENTIFY
 AS LGBT AND PATIENTS LIVING WITH HIV;
   (B) LEGAL REQUIREMENTS PERTAINING TO PATIENTS WHO IDENTIFY AS LGBT AND
 PATIENTS LIVING WITH HIV;
   (C) BEST PRACTICES FOR COLLECTION, STORAGE, USE,  AND  CONFIDENTIALITY
 OF  INFORMATION  REGARDING  SEXUAL  ORIENTATION, GENDER IDENTITY AND HIV
 STATUS;
   (D) BEST PRACTICES FOR TRAINING SUPPORT STAFF REGARDING  TREATMENT  OF
 PATIENTS WHO IDENTIFY AS LGBT OR ARE LIVING WITH HIV AND THEIR FAMILIES;
 AND
   (E)  UNDERSTANDING THE INTERSECTIONS BETWEEN SYSTEMS OF OPPRESSION AND
 DISCRIMINATION, RECOGNIZING THAT THOSE  WHO  IDENTIFY  AS  LGBT  OR  ARE
 LIVING  WITH  HIV  MAY  EXPERIENCE  THESE  SYSTEMS IN VARYING DEGREES OF
 INTENSITY, ADDRESSING UNDERLYING CULTURAL BIASES, AND PROVIDING  NONDIS-
 CRIMINATORY CARE.
   3.  FACILITY  STAFF  REQUIRED  TO  RECEIVE TRAINING UNDER THIS SECTION
 SHALL RECEIVE THE TRAINING WITHIN SIX MONTHS OF HIRE UNLESS  THE  PERSON
 PROVIDES  PROOF  OF HAVING RECEIVED COMPARABLE TRAINING WITHIN THE PRIOR
 TWO YEARS THAT THE FACILITY DETERMINES COMPLIES WITH THIS SECTION.    IF
 THE  FACILITY  ACCEPTS THE PERSON'S PROOF OF PRIOR TRAINING, A RECORD OF
 THE CONTENT OF THE PRIOR TRAINING SUFFICIENT TO DETERMINE ITS COMPLIANCE
 WITH THIS SECTION MUST BE KEPT ON SITE AT THE FACILITY.
   4. THE DEPARTMENT, IN CONJUNCTION WITH THE OFFICE FOR THE AGING, SHALL
 DEVELOP AND  IMPLEMENT  REGULATIONS  FOR  THE  CONDUCT  OF  TRAINING  AS
 REQUIRED BY THIS SECTION.
   §  4676.  APPLICATION.  NOTHING IN THIS ARTICLE SHOULD BE CONSTRUED TO
 IMPEDE EXISTING PROGRAMS, BENEFITS, OR PROTECTIONS FOR LGBT RESIDENTS OR
 RESIDENTS LIVING WITH HIV AT LONG-TERM CARE FACILITIES.
   § 4677. VIOLATIONS. 1. A VIOLATION OF THE PROVISIONS OF  THIS  ARTICLE
 SHALL BE TREATED AS A VIOLATION UNDER SECTION TWELVE OF THIS CHAPTER.
   2.  ANY  FACILITY  THAT  INTENTIONALLY  VIOLATES ANY PROVISION OF THIS
 ARTICLE SHALL BE LIABLE, IN A CIVIL ACTION OR PROCEEDING  MAINTAINED  BY
 ONE  OF  MORE  RESIDENTS  OF THE LONG-TERM CARE FACILITY, FOR INJUNCTIVE
 RELIEF, DAMAGES, OR ANY OTHER APPROPRIATE RELIEF IN LAW OR EQUITY. IF IT
 SHALL APPEAR TO THE SATISFACTION OF THE COURT OR JUSTICE THAT THE FACIL-
 ITY HAS, IN FACT, VIOLATED A PROVISION OF THIS  ARTICLE,  AN  INJUNCTION
 MAY  BE  ISSUED  BY SUCH COURT OR JUSTICE, ENJOINING AND RESTRAINING ANY
 FURTHER VIOLATION, WITHOUT REQUIRING PROOF  THAT  ANY  RESIDENT  OF  THE
 LONG-TERM CARE FACILITY HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY.
   § 2. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.  Effective immediately, the addition, amend-
 ment and/or repeal of any rule or regulation necessary for the implemen-
 tation  of  this act on its effective date are authorized to be made and
 completed on or before such date.

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Senate Bill S2912C

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Archive: Last Bill Status - In Senate Committee Aging Committee

Bill Amendments

2019-S2912 - Details

2019-S2912 - Summary

2019-S2912 - Sponsor Memo

2019-S2912 - Bill Text download pdf

co-Sponsors

2019-S2912A - Details

2019-S2912A - Summary

2019-S2912A - Sponsor Memo

2019-S2912A - Bill Text download pdf

co-Sponsors

2019-S2912B - Details

2019-S2912B - Summary

2019-S2912B - Sponsor Memo

2019-S2912B - Bill Text download pdf

co-Sponsors

2019-S2912C (ACTIVE) - Details

2019-S2912C (ACTIVE) - Summary

2019-S2912C (ACTIVE) - Sponsor Memo

2019-S2912C (ACTIVE) - Bill Text download pdf

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