§ 2803-C-2 — Lesbian, gay, bisexual and transgender, and people living with HIV long-term care facility residents' bill of rights

§ 2803-c-2. Lesbian, gay, bisexual and transgender, and people living\nwith HIV long-term care facility residents' bill of rights. 1.\nDefinitions. For the purposes of this section:\n (a) "Gender identity or expression" shall have the same meaning as\ndefined by section two hundred ninety-two of the executive law.\n (b) "Long-term care facilities" or "facilities" shall mean residential\nhealth care facilities as defined in subdivision three of section\ntwenty-eight hundred one of this article, adult care facilities as\ndefined in subdivision twenty-one of section two of the social services\nlaw, and assisted living residences, as defined in article forty-six-B\nof this chapter, or any facilities which hold themselves out or\nadvertise themselves as providing assisted living services and which are\nrequired to be licensed or certified under the social services law or\nthis chapter.\n (c) "Long-term care facility staff" or "facility staff" shall mean all\nindividuals employed by or contracted directly with the facility.\n (d) "Resident" shall mean a resident or patient of a long-term care\nfacility.\n 2. (a) Except as provided in subdivision three of this section, it\nshall be unlawful for a long-term care facility or facility staff to\ndiscriminate against any resident on the basis of such resident's actual\nor perceived sexual orientation, gender identity or expression, or human\nimmunodeficiency virus (HIV) status:\n (i) deny admission to a long-term care facility, transfer or refuse to\ntransfer a resident within a facility or to another facility, or\ndischarge or evict a resident from a facility;\n (ii) deny a request by residents to share a room;\n (iii) where rooms are assigned by gender, assigning, reassigning or\nrefusing to assign a room to a transgender resident other than in\naccordance with the transgender resident's gender identity, unless at\nthe transgender resident's request;\n (iv) prohibit a resident from using, or harass a resident who seeks to\nuse or does use, a restroom available to other persons of the same\ngender identity, regardless of whether the resident has taken or is\ntaking hormones, has had transition-related surgery, or is making a\ngender transition or appears to be gender-nonconforming. Harassment\nincludes, but is not limited to, requiring a resident to show identity\ndocuments in order to gain entrance to a restroom available to other\npersons of the same gender identity;\n (v) willfully and repeatedly fail to use a resident's preferred name\nor pronouns after being clearly informed of the preferred name or\npronouns, even if the resident is not present;\n (vi) deny a resident the right to wear or be dressed in clothing,\naccessories, or cosmetics that are permitted for any other resident;\n (vii) restrict a resident's right to associate with other residents or\nwith visitors, including the right to consensual expression of intimacy\nor sexual relations, unless the restriction is uniformly applied to all\nresidents in a nondiscriminatory manner; and\n (viii) deny or restrict a resident from accessing appropriate medical\nor nonmedical care, or provide medical or nonmedical care, that\nunreasonably demeans the resident's dignity or causes avoidable\ndiscomfort.\n (b) The provisions of this subdivision shall not apply to the extent\nthat they are incompatible with any professionally reasonable clinical\njudgment that is based on articulable facts of clinical significance.\n 3. Each facility shall post the following notice alongside its current\nnondiscrimination policy in all places and on all materials where that\npolicy is posted: "(NAME OF FACILITY) DOES NOT DISCRIMINATE AND DOES NOT\nPERMIT DISCRIMINATION, INCLUDING, BUT NOT LIMITED TO, BULLYING, ABUSE,\nHARASSMENT, OR DIFFERENTIAL TREATMENT ON THE BASIS OF ACTUAL OR\nPERCEIVED SEXUAL ORIENTATION, GENDER IDENTITY OR EXPRESSION, OR HIV\nSTATUS, OR BASED ON ASSOCIATION WITH ANOTHER INDIVIDUAL ON ACCOUNT OF\nTHAT INDIVIDUAL'S ACTUAL OR PERCEIVED SEXUAL ORIENTATION, GENDER\nIDENTITY OR EXPRESSION, OR HIV STATUS. YOU MAY FILE A COMPLAINT WITH THE\nOFFICE OF THE NEW YORK STATE LONG-TERM CARE OMBUDSMAN PROGRAM (PROVIDE\nCONTACT INFORMATION) IF YOU BELIEVE THAT YOU HAVE EXPERIENCED THIS KIND\nOF DISCRIMINATION."\n 4. (a) A facility shall employ procedures for recordkeeping,\nincluding, but not limited to, records generated at the time of\nadmission, that include the gender identity, correct name, as indicated\nby the resident, and pronoun of each resident, as indicated by the\nresident and such records shall be kept up to date.\n (b) The state long-term care ombudsman program shall establish\npolicies and procedures for recording complaints filed from residents of\nlong-term care facilities pursuant to this section.\n 5. Long-term care facilities shall protect personally identifiable\ninformation regarding residents' sexual orientation, whether a resident\nis transgender, a resident's transition history, and HIV status from\nunauthorized disclosure, as required by the federal Health Insurance\nPortability and Accountability Act of 1996, if applicable, and any other\napplicable provision of federal or state law. A facility shall take any\nsteps reasonably necessary to minimize the likelihood of inadvertent or\nincidental disclosure of that information to other residents, visitors,\nor facility staff, except to the minimum extent necessary for facility\nstaff to perform their duties.\n 6. Long-term care facility staff not directly involved in providing\ndirect care to a resident, including, but not limited to, a transgender\nor gender-nonconforming resident, shall not be present during physical\nexamination or the provision of personal care to such resident if such\nresident is partially or fully unclothed without the express permission\nof such resident, or such resident's legally authorized representative\nor responsible party. A facility shall use doors, curtains, screens, or\nother effective visual barriers to provide bodily privacy for all\nresidents, including, but not limited to, transgender or\ngender-nonconforming residents, whenever they are partially or fully\nunclothed. In addition, all residents, including, but not limited to,\nlesbian, gay, bisexual, transgender or gender-nonconforming residents,\nshall be informed of and have the right to refuse to be examined,\nobserved, or treated by any facility staff when the primary purpose is\neducational or informational rather than therapeutic, or for resident\nappraisal or reappraisal, and that refusal shall not diminish the\nresident's access to care for the primary purpose of diagnosis or\ntreatment.\n 7. (a) At least once every two years, a long-term care facility shall\nensure that every facility staff member who works directly with\nresidents receives training on cultural competency focusing on residents\nwho identify as lesbian, gay, bisexual or transgender and residents\nliving with HIV. Such training shall be developed by the commissioner,\nin consultation with the director of the office for the aging and\nentities with expertise in the legal and social challenges faced by\nlesbian, gay, bisexual or transgender older adults and people living\nwith HIV as they age and reside in long-term care facilities, and shall\ninclude, but not be limited to, providing facility staff with the\nknowledge and skills necessary to provide effective care, in compliance\nwith this section, for residents who identify as lesbian, gay, bisexual\nor transgender and residents living with HIV.\n (b) Facility staff required to receive training under this subdivision\nshall receive the training within six months of hire unless the person\nprovides proof of having received comparable training within the prior\ntwo years that the facility determines complies with this subdivision.\nIf the facility accepts the person's proof of prior training, a record\nof the content of the prior training sufficient to determine its\ncompliance with this subdivision shall be kept on site at the facility.\n 8. Nothing in this section should be construed to impede existing\nprograms, benefits, or protections for lesbian, gay, bisexual or\ntransgender residents or residents living with HIV at long-term care\nfacilities.\n