S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   11300
 
                           I N  A S S E M B L Y
 
                              August 15, 2018
                                ___________
 
 Introduced  by COMMITTEE ON RULES -- (at request of M. of A. Simotas) --
   read once and referred 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.
   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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD13518-04-8

 A. 11300                            2
 
 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.
   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

 A. 11300                            3
 
 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
 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

 A. 11300                            4
 
 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.