New LGBT Bill of Rights Law to Take Effect May 28th

(May 20, 2024) A new law reinforcing prohibitions against discrimination on the basis of actual or perceived sexual orientation, gender identity, gender expression, and human immunodeficiency virus (HIV) status takes effect on May 28^th. The law, which was enacted in 2023, requires nursing homes and adult care facilities (ACFs) to post a notice about the facilities' policies of non-discrimination on these grounds. It also requires the provision of staff training, developed by the Department of Health (DOH), once every two years in cultural competency related to the legal and social challenges faced by lesbian, gay, bisexual, and transgender (LGBT) residents and people living with HIV.

The new law also prohibits discrimination on the basis of sexual orientation, gender identity or expression, or HIV status as evidenced by any of the following:

Denying admission, transfer within a facility or to another facility, or discharging or evicting a resident;
Denying a request by residents to share a room;
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;
Prohibiting a resident from using, or harassing a resident who seeks to use, a restroom available to other persons of the same gender identity;
Willfully and repeatedly failing 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;
Denying a resident the right to wear clothing, accessories, or cosmetics that are permitted for any other resident;
Restricting 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
Denying or restricting a resident from accessing appropriate medical or non-medical care, or refusing to provide medical or non-medical care, that unreasonably demeans the resident's dignity or causes avoidable discomfort.

The law provides an exemption for situations in which these prohibitions are "incompatible with any professionally reasonable clinical judgment that is based on articulable facts of clinical significance."

Among other requirements, the law requires facilities to post the following notice next to other nondiscrimination policies in the facility:

(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.

The law also includes provisions to protect the privacy and dignity of individuals during physical examinations and personal care. It further includes provisions to protect the privacy and confidentiality of information regarding sexual orientation, transgender status, and HIV status.

DOH has issued a Dear Administrator Letter (DAL) summarizing the law. The DAL strongly encourages nursing homes and ACFs to review their existing policies and procedures and update as appropriate to ensure compliance with these requirements. Questions regarding compliance with the law may be directed to DOH at the following mailboxes:

For nursing homes: nhinfo@health.ny.gov; and
For ACFs: acfinfo@health.ny.gov.

According to DOH, the required training program is under development, but is not yet available.

More information is available here and here.

Contact: Karen Lipson, klipson@leadingageny.org