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S02912 Summary:

BILL NOS02912C
 
SAME ASSAME AS A00866-C
 
SPONSORHOYLMAN
 
COSPNSRKAPLAN, KENNEDY, RIVERA, SKOUFIS
 
MLTSPNSR
 
Add Art 46-C 4670 - 4677, Pub Health L
 
Establishes the lesbian, gay, bisexual, and transgender long-term care facility residents' bill of rights.
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S02912 Actions:

BILL NOS02912C
 
01/30/2019REFERRED TO AGING
05/10/2019AMEND (T) AND RECOMMIT TO AGING
05/10/2019PRINT NUMBER 2912A
05/30/20191ST REPORT CAL.1100
06/03/20192ND REPORT CAL.
06/04/2019ADVANCED TO THIRD READING
06/06/2019AMENDED ON THIRD READING 2912B
06/20/2019COMMITTED TO RULES
01/08/2020REFERRED TO AGING
03/02/2020AMEND (T) AND RECOMMIT TO AGING
03/02/2020PRINT NUMBER 2912C
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S02912 Memo:

Memo not available
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S02912 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         2912--C
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                    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:
 
     1    Section 1.  The public health law is amended by adding a  new  article
     2  46-C to read as follows:
     3                                ARTICLE 46-C
     4       LESBIAN, GAY, BISEXUAL, AND TRANSGENDER LONG-TERM CARE FACILITY
     5                          RESIDENTS' BILL OF RIGHTS
     6  Section 4670. Definitions.
     7          4671. Unlawful actions.
     8          4672. Recordkeeping.
     9          4673. Protection of personally identifiable information.
    10          4674. Resident privacy.
    11          4675. Training.
    12          4676. Application.
    13          4677. Violations.
    14    § 4670. Definitions. For the purposes of this article:
    15    1."Gender  identity  or  expression"  shall  mean a person's actual or
    16  perceived gender-related identity, appearance, behavior, expression,  or
    17  other  gender-related  characteristic  regardless of the sex assigned to
    18  that person at birth, including, but not limited to, the status of being
    19  transgender.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01537-08-0

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

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

        S. 2912--C                          4
 
     1    § 4675. Training. 1.  At least once every two years, a long-term  care
     2  facility shall ensure that each facility staff member who works directly
     3  with  residents  receives  training  on  cultural competency focusing on
     4  patients who identify as LGBT and patients living with HIV.
     5    2.   The instruction required by subdivision one of this section shall
     6  be provided by an entity or individual with expertise in identifying and
     7  addressing the legal and social challenges  faced  by  LGBT  people  and
     8  people  living with HIV as they age and reside in long-term care facili-
     9  ties and shall teach attitudes, knowledge, and skills that enable facil-
    10  ity staff to care effectively for residents who  identify  as  LGBT  and
    11  residents living with HIV, which may include:
    12    (a) understanding and applying relevant data concerning health dispar-
    13  ities  and  risk factors for patients seeking clinical care who identify
    14  as LGBT and patients living with HIV;
    15    (b) legal requirements pertaining to patients who identify as LGBT and
    16  patients living with HIV;
    17    (c) best practices for collection, storage, use,  and  confidentiality
    18  of  information  regarding  sexual  orientation, gender identity and HIV
    19  status;
    20    (d) best practices for training support staff regarding  treatment  of
    21  patients who identify as LGBT or are living with HIV and their families;
    22  and
    23    (e)  understanding the intersections between systems of oppression and
    24  discrimination, recognizing that those  who  identify  as  LGBT  or  are
    25  living  with  HIV  may  experience  these  systems in varying degrees of
    26  intensity, addressing underlying cultural biases, and providing  nondis-
    27  criminatory care.
    28    3.  Facility  staff  required  to  receive training under this section
    29  shall receive the training within six months of hire unless  the  person
    30  provides  proof  of having received comparable training within the prior
    31  two years that the facility determines complies with this section.    If
    32  the  facility  accepts the person's proof of prior training, a record of
    33  the content of the prior training sufficient to determine its compliance
    34  with this section must be kept on site at the facility.
    35    4. The department, in conjunction with the office for the aging, shall
    36  develop and  implement  regulations  for  the  conduct  of  training  as
    37  required by this section.
    38    §  4676.  Application.  Nothing in this article should be construed to
    39  impede existing programs, benefits, or protections for LGBT residents or
    40  residents living with HIV at long-term care facilities.
    41    § 4677. Violations. 1. A violation of the provisions of  this  article
    42  shall be treated as a violation under section twelve of this chapter.
    43    2.  Any  facility  that  intentionally  violates any provision of this
    44  article shall be liable, in a civil action or proceeding  maintained  by
    45  one  of  more  residents  of the long-term care facility, for injunctive
    46  relief, damages, or any other appropriate relief in law or equity. If it
    47  shall appear to the satisfaction of the court or justice that the facil-
    48  ity has, in fact, violated a provision of this  article,  an  injunction
    49  may  be  issued  by such court or justice, enjoining and restraining any
    50  further violation, without requiring proof  that  any  resident  of  the
    51  long-term care facility has, in fact, been injured or damaged thereby.
    52    § 2. This act shall take effect on the one hundred eightieth day after
    53  it shall have become a law.  Effective immediately, the addition, amend-
    54  ment and/or repeal of any rule or regulation necessary for the implemen-
    55  tation  of  this act on its effective date are authorized to be made and
    56  completed on or before such date.
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