N.Y. Public Health Law § 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

with HIV long-term care facility residents' bill of rights. 1.

Definitions. For the purposes of this section:

(a) "Gender identity or expression" shall have the same meaning as

defined by section two hundred ninety-two of the executive law.

(b) "Long-term care facilities" or "facilities" shall mean residential

health care facilities as defined in subdivision three of section

twenty-eight hundred one of this article, 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 themselves as providing assisted living services and which are

required to be licensed or certified under the social services law or

this chapter.

(c) "Long-term care facility staff" or "facility staff" shall mean all

individuals employed by or contracted directly with the facility.

(d) "Resident" shall mean a resident or patient of a long-term care

facility.

2. (a) Except as provided in subdivision three of this section, it

shall be unlawful for a long-term care facility or facility staff to

discriminate against any resident on the basis of such resident's actual

or perceived sexual orientation, gender identity or expression, or human

immunodeficiency virus (HIV) status:

(i) 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;

(ii) deny 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 transgender resident other than in

accordance with the transgender resident's gender identity, unless at

the transgender resident's request;

(iv) 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;

(v) 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;

(vi) deny a resident the right to wear or be dressed in clothing,

accessories, or cosmetics that are permitted for any other resident;

(vii) 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

(viii) deny or restrict a resident from accessing appropriate medical

or nonmedical care, or provide medical or nonmedical care, that

unreasonably demeans the resident's dignity or causes avoidable

discomfort.

(b) The provisions of this subdivision shall not apply to the extent

that they are incompatible with any professionally reasonable clinical

judgment 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

IDENTITY 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."

4. (a) 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 shall be kept up to date.

(b) The state long-term care ombudsman program shall establish

policies and procedures for recording complaints filed from residents of

long-term care facilities pursuant to this section.

5. Long-term care facilities shall protect personally identifiable

information regarding residents' sexual orientation, whether a resident

is transgender, a resident's transition history, and HIV status from

unauthorized disclosure, as required by the federal Health Insurance

Portability and Accountability Act of 1996, 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 inadvertent 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.

6. 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 such resident if such

resident is partially or fully unclothed without the express permission

of such resident, or such 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, transgender or

gender-nonconforming residents, whenever they are partially or fully

unclothed. In addition, all residents, including, but not limited to,

lesbian, gay, bisexual, transgender 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.

7. (a) At least once every two years, a long-term care facility shall

ensure that every facility staff member who works directly with

residents receives training on cultural competency focusing on residents

who identify as lesbian, gay, bisexual or transgender and residents

living with HIV. Such training shall be developed by the commissioner,

in consultation with the director of the office for the aging and

entities with expertise in the legal and social challenges faced by

lesbian, gay, bisexual or transgender older adults and people living

with HIV as they age and reside in long-term care facilities, and shall

include, but not be limited to, providing facility staff with the

knowledge and skills necessary to provide effective care, in compliance

with this section, for residents who identify as lesbian, gay, bisexual

or transgender and residents living with HIV.

(b) Facility staff required to receive training under this subdivision

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 subdivision.

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 subdivision shall be kept on site at the facility.

8. Nothing in this section should be construed to impede existing

programs, benefits, or protections for lesbian, gay, bisexual or

transgender residents or residents living with HIV at long-term care

facilities.