S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    372
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              January 6, 2023
                                ___________
 
 Introduced  by M. of A. BRONSON, SEAWRIGHT, DINOWITZ, GLICK -- read once
   and referred to the Committee on Aging
 
 AN ACT to amend the public health law, in relation to  establishing  the
   lesbian,  gay, bisexual, and transgender long-term care facility resi-
   dents' bill of rights

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   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.
   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.
                                                            LBD01718-01-3
 A. 372                              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 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
   (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.
 A. 372                              3
 
   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.
   §  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
 A. 372                              4
 
 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 on or
 before such date.