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A00866 Summary:

BILL NOA00866C
 
SAME ASSAME AS S02912-C
 
SPONSORSimotas
 
COSPNSRO'Donnell, Quart, Lavine, Bronson, Reyes, Gottfried, Glick, De La Rosa, Cruz, Seawright
 
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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A00866 Actions:

BILL NOA00866C
 
01/11/2019referred to aging
05/14/2019amend (t) and recommit to aging
05/14/2019print number 866a
06/07/2019amend and recommit to aging
06/07/2019print number 866b
01/08/2020referred to aging
03/03/2020amend (t) and recommit to aging
03/03/2020print number 866c
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A00866 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A866C
 
SPONSOR: Simotas
  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 bare 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 reason- able clinical judgment. Facilities also be required under this section 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. - 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.
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A00866 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         866--C
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 11, 2019
                                       ___________
 
        Introduced  by  M.  of  A.  SIMOTAS,  O'DONNELL, QUART, LAVINE, BRONSON,
          REYES, GOTTFRIED, GLICK, DE LA ROSA, CRUZ, SEAWRIGHT -- read once  and
          referred  to  the  Committee  on  Aging  -- committee discharged, bill
          amended, ordered reprinted as amended and recommitted to said  commit-
          tee  --  again  reported  from said committee with amendments, ordered
          reprinted as amended and recommitted to said committee --  recommitted
          to  the  Committee on Aging in accordance with Assembly Rule 3, sec. 2
          -- committee discharged, bill amended, ordered  reprinted  as  amended
          and recommitted to said committee
 
        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
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01537-09-0

        A. 866--C                           2
 
     1  that person at birth, including, but not limited to, the status of being
     2  transgender.
     3    2.  "Gender-nonconforming" shall mean a person whose gender expression
     4  does not conform to stereotypical expectations of how  a  man  or  woman
     5  should appear or act.
     6    3. "LGBT" shall mean lesbian, gay, bisexual, or transgender.
     7    4.  "Long-term care facilities" or "facilities" shall mean residential
     8  health care facilities as defined in subdivision three of section  twen-
     9  ty-eight  hundred  one of this chapter, adult care facilities as defined
    10  in subdivision twenty-one of section two of the social services law, and
    11  assisted living residences, as defined in article  forty-six-B  of  this
    12  chapter,  or any facilities which hold themselves out or advertise them-
    13  selves as providing assisted living services and which are  required  to
    14  be licensed or certified under the social services law or this chapter.
    15    5.  "Long-term care facility staff" or "facility staff" shall mean all
    16  individuals employed by or contracted directly with the facility.
    17    6. "Resident" shall mean a resident or patient  of  a  long-term  care
    18  facility.
    19    7.  "Transition"  shall  mean  to  undergo a process by which a person
    20  changes physical sex characteristics or gender expression to  match  the
    21  person's  inner sense of being male or female. This process may include,
    22  among other things, a name change, a change in preferred pronouns, and a
    23  change in social gender expression, as indicated by hairstyle, clothing,
    24  and restroom use. Transition may or may  not  include  hormone  use  and
    25  surgery.
    26    §  4671. Unlawful actions. 1. Except as provided in subdivision two of
    27  this section, it shall be unlawful for  a  long-term  care  facility  or
    28  facility  staff to take any of the following actions wholly or partially
    29  for a discriminatory reason  on  the  basis  of  a  person's  actual  or
    30  perceived  sexual  orientation,  gender identity or expression, or human
    31  immunodeficiency virus (HIV) status:
    32    (a) deny admission to a long-term care facility, transfer or refuse to
    33  transfer a resident  within  a  facility  or  to  another  facility,  or
    34  discharge or evict a resident from a facility;
    35    (b) deny a request by residents to share a room;
    36    (c)  where  rooms  are  assigned  by gender, assigning, reassigning or
    37  refusing to assign a room  to  a  transgender  resident  other  than  in
    38  accordance  with  the  transgender resident's gender identity, unless at
    39  the transgender resident's request;
    40    (d) prohibit a resident from using, or harass a resident who seeks  to
    41  use  or  does  use,  a  restroom  available to other persons of the same
    42  gender identity, regardless of whether the  resident  has  taken  or  is
    43  taking  hormones,  has  had  transition-related  surgery, or is making a
    44  gender transition or appears to  be  gender-nonconforming.    Harassment
    45  includes,  but  is not limited to, requiring a resident to show identity
    46  documents in order to gain entrance to a  restroom  available  to  other
    47  persons of the same gender identity;
    48    (e)  willfully  and repeatedly fail to use a resident's preferred name
    49  or pronouns after being  clearly  informed  of  the  preferred  name  or
    50  pronouns, even if the resident is not present;
    51    (f)  deny  a  resident  the  right  to wear or be dressed in clothing,
    52  accessories, or cosmetics that are permitted for any other resident;
    53    (g) restrict a resident's right to associate with other  residents  or
    54  with  visitors, including the right to consensual expression of intimacy
    55  or sexual relations, unless the restriction is uniformly applied to  all
    56  residents in a nondiscriminatory manner; and

        A. 866--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.

        A. 866--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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