Establishes the lesbian, gay, bisexual and transgender, and people living with HIV long-term care facility residents' bill of rights; prohibits a long-term care facility or facility staff from discriminating against any resident on the basis of such resident's actual or perceived sexual orientation, gender identity or expression, or HIV status.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A372A REVISED 5/22/23
SPONSOR: Bronson TITLE OF BILL:
An act to amend the public health law, in relation to establishing the
lesbian, gay, bisexual and transgender, and people living with HIV long-
term care facility residents' bill of rights
SUMMARY OF PROVISIONS:
Section 1 of the bill establishes a new section 2803-c-2 of the Public
Health Law which enacts the Lesbian, Gay, Bisexual, Transgender and
People Living with HIV Long Term Care Bill of Rights, which provides it
is unlawful for a long-term care facility or facility staff member to
discriminate against any resident on the basis of such resident's actual
or perceived sexual orientation, gender identity or expression, or human
immunodeficiency virus (HIV) status. 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 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 dare that is appro-
priate 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.
Further, the bill requires:
-facilities to post notices about their nondiscrimination policies with
information about reporting violations to the Office of the New York
State Long-Term Care Ombudsman Program;
-facilities to employ procedures for recordkeeping purposes that include
residents' gender identity, correct name as indicated by the resident,
and preferred prdhoun as indicated by the resident;
-requires facilities to 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 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;
-ensure that facility staff that are not 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; and
-ensure that at least once every two years, each facility staff member
who works directly with residents receives training on . cultural
competency focusing on patients who identify as LGBT and/or HIV
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 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 admis-
sion 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 actu-
al 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:
A.866-C of 2019-2020 (Simotas): Committed to Aging
A.7807 of 2021-22: referred to 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.
