2023 New York Laws › PBH - Public Health › Article 28 - Hospitals › 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.
* NB Effective May 28, 2024