S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    85
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  Sens. HOYLMAN, BIAGGI, KAPLAN, KENNEDY, RIVERA, SKOUFIS,
   STAVISKY -- read twice and ordered printed, and  when  printed  to  be
   committed to the Committee on Health
 
 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:
 
   Section 1.  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
 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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD02688-01-1

 S. 85                               2
 
   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
 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.

 S. 85                               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."
   § 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
 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

 S. 85                               4
 
 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
 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 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 on or
 before such date.