The New York State Senate

                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   866

                       2019-2020 Regular Sessions

                          I N  A S S E M B L Y

                            January 11, 2019
                               ___________

Introduced  by M. of A. SIMOTAS -- read once and referred to the Commit-
  tee 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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01537-01-9

A. 866                              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 THE PUBLIC HEALTH LAW, 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 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.

A. 866                              3

  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
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

A. 866                              4

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
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.

                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 866--A

                       2019-2020 Regular Sessions

                          I N  A S S E M B L Y

                            January 11, 2019
                               ___________

Introduced  by  M.  of  A.  SIMOTAS,  O'DONNELL, QUART, LAVINE, BRONSON,
  REYES, GOTTFRIED, GLICK, DE LA ROSA, CRUZ -- read once and referred to
  the Committee on Aging -- committee discharged, bill amended,  ordered
  reprinted as amended and recommitted to said committee

AN  ACT to amend the elder law and the public health 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.  Subdivision 1 of section 203 of the elder law  is  amended
to read as follows:
  1. The office shall submit to the federal department of health, educa-
tion  and  welfare a state plan for purposes of the federal older Ameri-
cans act of 1965 and subsequent amendments thereto. The office shall  be
the  single state agency for supervising the administration of such plan
and shall be primarily responsible for coordination  of  state  programs
for the aging for purposes of such federal act. The office shall act for
the state in any negotiations relative to the submission and approval of
such  plan and may make such arrangements, not inconsistent with law, as
may be required by or pursuant to federal law to obtain and retain  such
approval  and  to secure for the state the benefits of the provisions of
such federal act.  FOR THE PURPOSES OF ADMINISTERING THE  FEDERAL  OLDER
AMERICANS  ACT  OF  1965  AND  SUBSEQUENT  AMENDMENTS  THERETO, THE TERM
"GREATEST SOCIAL NEED" SHALL BE INTERPRETED BY THE OFFICE TO INCLUDE THE
LESBIAN, GAY, BISEXUAL AND TRANGENDER  SENIOR  POPULATION,  AS  WELL  AS
SENIORS LIVING WITH HIV.
  § 2.  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD01537-05-9

A. 866--A                           2

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.
  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

A. 866--A                           3

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.
  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

A. 866--A                           4

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
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

A. 866--A                           5

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.
  § 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law.  Effective immediately, the addition, amend-
ment or repeal of any rule or regulation necessary for  the  implementa-
tion  of  this  act  on its effective date are authorized to be made and
completed on or before such date.

                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 866--B

                       2019-2020 Regular Sessions

                          I N  A S S E M B L Y

                            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

AN ACT to amend the elder law and the public health 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.   Subdivision 1 of section 203 of the elder law is amended
to read as follows:
  1. The office shall submit to the federal department of health, educa-
tion and welfare a state plan for purposes of the federal  older  Ameri-
cans  act of 1965 and subsequent amendments thereto. The office shall be
the single state agency for supervising the administration of such  plan
and  shall  be  primarily responsible for coordination of state programs
for the aging for purposes of such federal act. The office shall act for
the state in any negotiations relative to the submission and approval of
such plan and may make such arrangements, not inconsistent with law,  as
may  be required by or pursuant to federal law to obtain and retain such
approval and to secure for the state the benefits of the  provisions  of
such  federal act.   FOR THE PURPOSES OF ADMINISTERING THE FEDERAL OLDER
AMERICANS ACT OF  1965  AND  SUBSEQUENT  AMENDMENTS  THERETO,  THE  TERM
"GREATEST SOCIAL NEED" SHALL BE INTERPRETED BY THE OFFICE TO INCLUDE THE
LESBIAN,  GAY,  BISEXUAL  AND  TRANSGENDER SENIOR POPULATION, AS WELL AS
SENIORS LIVING WITH HIV.
  § 2.  The public health law is amended by adding a new article 46-C to
read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01537-07-9

A. 866--B                           2

                              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.
  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

A. 866--B                           3

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.
  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

A. 866--B                           4

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
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.

A. 866--B                           5

  § 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.
  § 3. 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 and
completed on or before such date.