§ 72GG — Prohibition on discrimination based on sexual orientation, gender identity, gender expression, intersex status or HIV status in long-term care facilities; notice requirements; resident records; privacy in direct care and physical examinations; access to transgender medical care; LBGTQI-related programming; violations; staff training

[ Text of section added by 2024, 197, Sec. 17 effective March 5, 2025. See 2024, 197, Sec. 40.]Section 72GG. (a) As used in this section the following words shall have the following meanings unless the context clearly requires otherwise:"Gender expression'', the manner in which a person represents or expresses gender to others, often through behavior, clothing, hairstyles, activities, voice or mannerisms."Gender identity'' or "gender'', a person's gender identity, appearance or behavior, whether or not that gender identity, appearance or behavior is different from that traditionally associated with the person's physiology or birth sex; provided, however, that gender identity may be demonstrated through medical history, care or treatment of the gender identity, consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person's core identity; and provided further, that gender identity shall not be asserted for any improper purpose."Gender-nonconforming'', gender expression does not conform to stereotypical expectations of such gender."Gender transition'', a process in which a person begins to live according to that person's gender identity, rather than the sex the person was assigned at birth, which may include changing one's clothing, appearance, name or identification documents or undergoing medical treatments."HIV'', human immunodeficiency virus."Intersex'', a person whose sexual or reproductive anatomy or chromosomal pattern is not consistent with typical definitions of male or female."LGBTQI'', lesbian, gay, bisexual, transgender, questioning, queer and intersex."Long-term care facility staff'', all individuals employed by, or contracted directly with, a long-term care facility."Non-binary'' describes a person whose gender identity falls outside of the traditional gender binary structure of man and woman."Queer'', a person whose gender expression, gender identity or sexual orientation does not conform to dominant expectations or standards."Questioning'', a person who is exploring or unsure about their own sexual orientation or gender identity or expression."Sexual orientation'', a person's romantic or sexual attraction to other people."Transgender'', a person whose gender identity or gender expression differs from the birth sex of that person.(b) Except as provided in subsection (c), long-term care facilities and long-term care facility staff shall not take any of the following actions based in whole or in part on a person's actual or perceived sexual orientation, gender identity, gender expression, intersex status or HIV status:(i) denying admission to a long-term care facility, transferring or refusing to transfer a resident within a facility or to another facility or discharging or evicting a resident from a facility;(ii) denying a request by residents to share a room;(iii) where rooms are assigned by gender, assigning, reassigning or refusing to assign a room to (A) a transgender resident other than in accordance with the transgender resident's gender identity, unless at the transgender resident's request, or (B) a non-binary resident other than in accordance with the non-binary resident's preference;(iv) prohibiting a resident from using or harassing a resident for using or seeking to use, a restroom available to other persons of the same gender identity, regardless of whether the resident is making a gender transition, has taken or is taking hormones, has undergone gender affirmation surgery or presents as gender-nonconforming; provided, however, that for the purposes of this clause, harassment shall include, but not be limited to, requiring a resident to show identity documents to gain entrance to a restroom;(v) repeatedly and intentionally failing to use a resident's chosen name or pronouns after being informed of the chosen name or pronouns, in a manner that constitutes discrimination or harassment in violation of any applicable federal, state or local law;(vi) denying a resident the right to wear or be dressed in clothing, accessories or cosmetics or to engage in grooming practices that are permitted to any other resident;(vii) restricting a resident's right to associate with other residents or with visitors, including the right to consensual sexual relations where sexual relations would not be restricted if the participants were heterosexual or married;(viii) denying or restricting medical or nonmedical care that is appropriate to a resident's organs and bodily needs or providing such care that unduly demeans the resident or causes avoidable discomfort or harm; or(ix) refusing or willfully failing to provide any service, care or reasonable accommodation to a resident or an applicant for services or care.(c) The requirements of this section shall not apply to the extent that compliance with the requirement is incompatible with any professionally reasonable clinical judgment or inconsistent with 42 CFR § 483.15(c)(1), 42 CFR § 483.24 and 105 CMR 150.003.(d) Each facility shall distribute a document containing the following notice alongside the informational document required by section 72AA:"[Name of facility] does not discriminate and does not permit discrimination by persons employed by the facility including, but not limited to, abuse or harassment, on the basis of actual or perceived sexual orientation, gender identity, gender expression, intersex status or HIV status or based on association with another individual on account of that individual's actual or perceived sexual orientation, gender identity, gender expression, intersex status or HIV status. You may file a complaint with the office of the long-term care ombudsman, [provide current contact information] if you believe you have experienced this kind of discrimination.''(e) Each long-term care facility shall ensure that resident records, including records generated at the time of admission, include the resident's gender and the name and pronouns by which the resident would like to be identified, as indicated by the resident.(f) Unless expressly authorized by the resident or the resident's authorized representative, long-term care facility staff not involved in providing direct care to a resident shall not be present during physical examination of, or the provision of personal care to, that resident if the resident is partially or fully unclothed.(g) Transgender residents shall be provided access to such transition-related assessments, therapy and treatments as have been recommended by the resident's health care provider, including, but not limited to, transgender-related medical care, including hormone therapy and supportive counseling, subject to availability and third-party medical coverage.(h) LGBTQI-related programming, such as an LGBTQI Pride Month event or a Transgender Day of Remembrance event, shall be allowed and treated equally to other cultural celebrations or commemorations.(i) The department shall promulgate regulations relative to discipline and penalties for long-term care facilities that violate the requirements of this section or that employ a staff member who violates the requirements of this section, which shall include, but not be limited to, civil penalties and other administrative action. Nothing in this section shall be construed to limit the ability of any party to bring a civil, criminal or administrative action for conduct constituting a violation of any other provision of law.(j)(1) A long-term care facility shall ensure that the long-term care facility staff receive training, on at least a biennial basis, concerning:(i) the care of LGBTQI older adults and older adults living with HIV; and(ii) the prevention of discrimination based on sexual orientation, gender identity or expression, intersex status and HIV status.(2) The training required by this section shall include, but not be limited to:(i) the definition of the terms commonly associated with sexual orientation, gender identity and expression, intersex status and HIV status;(ii) best practices for communicating with or about LGBTQI older adults and older adults living with HIV and others who are LGBTQI or living with HIV, including the use of any name and pronouns by which residents may express the desire to be identified;(iii) a description of the health and social challenges historically experienced by LGBTQI older adults and older adults living with HIV and others who are LGBTQI or living with HIV, including discrimination when seeking or receiving care at long-term care facilities, and the demonstrated physical and mental health effects within the LGBTQI community associated with such discrimination;(iv) strategies to create a safe and affirming environment for LGBTQI seniors and residents living with HIV, including suggested changes to facility policies and procedures, forms, signage, communication between residents and their families, activities and staff training and in-services; and(v) an overview of the provisions of this section.(3) The department shall select an entity that has demonstrated expertise in creating safe and affirming environments and identifying the legal, social and medical challenges faced by LGBTQI older adults and older adults living with HIV and others who are LGBTQI or living with HIV, who reside in long-term care facilities, to provide the training required by this section.(4) Long-term care facility staff shall complete all training required by this section within 1 year of their date of hire unless the new hire provides the long-term care facility with documentation demonstrating that they have completed equivalent training within the past 2 years.(5) Each long-term care facility shall retain records documenting the completion of the training required pursuant to this section by each administrator and staff member at the long-term care facility. Compliance records shall be made available, upon request, to the department, the executive office of health and human services and the office of the statewide long-term care ombudsman.(6) Each long-term care facility shall assume the cost of providing the training required pursuant to this section.(k) The commissioner and the secretary of health and human services shall adopt rules and regulations as may be necessary to implement this section.