New Legislation Reinforces Rights of LGBT Residents and Residents with HIV

Governor Hochul has signed legislation creating a Bill of Rights for lesbian, gay, bisexual, and transgender (LGBT) residents and people living with HIV in nursing homes and adult care facilities (ACFs). The law reinforces existing prohibitions against discrimination on the basis of actual or perceived sexual orientation, gender identity, gender expression, or HIV status. 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 LGBT residents and people living with HIV. The law takes effect 180 days after enactment (on May 28, 2024).

The new law 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 nonmedical care, or provide medical or nonmedical 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."

The law includes a new notice that must be posted 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.

California, New Jersey, and Washington, D.C. have enacted similar laws. LeadingAge NY worked with the Legislature to ensure that the enacted law would be feasible for providers and supported the final version of the legislation. LeadingAge NY will provide additional information on the implementation of this legislation as it becomes available.

Contact: Karen Lipson, klipson@leadingageny.org