Amended  IN  Assembly  June 22, 2017
Amended  IN  Senate  May 26, 2017
Amended  IN  Senate  May 03, 2017
Amended  IN  Senate  April 06, 2017
Amended  IN  Senate  March 21, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 219

Introduced by Senator Wiener
(Principal coauthor: Assembly Member Chiu)
(Coauthor: Assembly Member Cervantes)

February 01, 2017

An act to add Chapter 2.45 (commencing with Section 1439.50) to Division 2 of, and to add and repeal Section 1338.4 of, the Health and Safety Code, relating to health facilities.


LEGISLATIVE COUNSEL'S DIGEST


SB 219, as amended, Wiener. Long-term care facilities: rights of residents.
Existing law provides for the licensure and regulation by the State Department of Public Health of health facilities, including skilled nursing facilities and intermediate care facilities. A violation of these provisions is a crime. Existing law, the Long-Term Care, Health, Safety, and Security Act of 1973, imposes various requirements on long-term health care facilities, as defined, and prescribes the civil penalties assessed for a violation of those requirements.
Existing law, the California Residential Care Facilities for the Elderly Act, provides for the licensure and regulation of residential care facilities for the elderly by the State Department of Social Services. Under existing law, a person who violates the act, or who willfully or repeatedly violates any rule or regulation adopted under the act, is guilty of a misdemeanor. Existing law also provides for civil penalties for a violation of the act.
Existing law, the California Fair Employment and Housing Act, makes it unlawful to discriminate against any person in any housing accommodation on the basis of, among others, sex, gender, gender identity, gender expression, or sexual orientation.
This bill would enact the Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Resident’s Bill of Rights. Among other things, the bill would make it unlawful, except as specified, for any long-term care facility to take specified actions wholly or partially on the basis of a person’s actual or perceived sexual orientation, gender identity, gender expression, or human immunodeficiency virus (HIV) status, including, among others, willfully and repeatedly failing to use a resident’s preferred name or pronoun after being clearly informed of the preferred name and pronoun and denying admission to a long-term care facility, transferring or refusing to transfer a resident within a facility or to another facility, or discharging or evicting a resident from a facility. The bill would also provide certain protections to all residents of long-term care facilities during, among others, physical examinations or treatments, relating to bodily privacy. The bill would define long-term care facility for purposes of these provisions to include skilled nursing facilities, intermediate care facilities, and residential care facilities for the elderly. The bill would also, among other things, require each facility to post a specified notice regarding discrimination alongside its current nondiscrimination policy in all places and on all materials where the nondiscrimination policy is posted. The bill would require a violation of these provisions to be treated as a violation under the Long-Term Care, Health, Safety, and Security Act of 1973, the California Residential Care Facilities for the Elderly Act, or specified provisions providing for the licensure and regulation of health facilities, which may include the imposition of civil penalties. The bill would prohibit a violation of these provisions from serving as the basis of a cause of action against a healthcare professional acting within the scope of his or her licensure and would prohibit the healthcare professional from being subject to civil, administrative, disciplinary, or medical staff action, sanction, penalty, or liability for loss, injury, or damage caused by his or her act or failure to act when that act or failure to act is reasonably necessary for the care, health, or safety of the resident. By expanding the definition of existing crimes, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) In 2006, the California Legislature found that “lifelong experiences of marginalization place lesbian, gay, bisexual, and transgender (LGBT) seniors at high risk for isolation, poverty, homelessness, and premature institutionalization. Moreover, many LGBT seniors are members of multiple underrepresented groups, and as a result, are doubly marginalized. Due to these factors, many LGBT seniors avoid accessing elder programs and services, even when their health, safety, and security depend on it.”
(b) Recent studies confirm the state’s findings and provide evidence that LGBT seniors experience discrimination, including in long-term care facilities where residents are particularly vulnerable because they must rely on others for necessary care and services, and may no longer enjoy the privacy of having their own home or even their own room.
(c) According to “Stories from the Field: LGBT Older Adults in Long-Term Care Facilities,” a 2011 study published by the National Senior Citizens Law Center, these issues have gone unaddressed. In that study, 43 percent of respondents reported personally witnessing or experiencing instances of mistreatment of LGBT seniors in a long-term care facility, including all of the following: being refused admission or readmission, being abruptly discharged, verbal or physical harassment from staff, staff refusal to accept medical power of attorney from the resident’s spouse or partner, discriminatory restrictions on visitation, and staff refusal to refer to a transgender resident by his or her preferred name or pronoun. Eighty-one percent of respondents believed that other residents would discriminate against an LGBT elder in a long-term care facility, 89 percent of respondents believed that staff would discriminate against an LGBT elder in a long-term care facility, and 53 percent believed that staff discrimination would rise to the level of abuse or neglect. Though this was a national report, it included instances of severe discrimination within California.
(d) Even more recently, in 2013, the San Francisco LGBT Aging Policy Task Force commissioned a report by Professor Karen Fredriksen-Goldsen of the University of Washington, “Addressing the Needs of LGBT Older Adults in San Francisco: Recommendations for the Future,” based on information collected from over 600 LGBT seniors residing in San Francisco, including nearly 140 LGBT seniors of color. This report found that nearly 60 percent of the study participants lived alone, and of the 15 percent of the study participants who had children, 60 percent reported that these children would not be available to assist them. Many reported poor physical and mental health with nearly one-third of all respondents reported poor general health, close to one-half reported having one or more disabilities, and one-third of male participants reported that they were living with human immunodeficiency virus (HIV) or acquired immune deficiency syndrome (AIDS). These results indicate that, as compared to seniors in San Francisco generally, LGBT seniors have a heightened need for care, but often lack family support networks available to non-LGBT seniors. Further, LGBT seniors’ fear of accessing services is justified. Nearly one-half of the participants in the San Francisco study reported experiencing discrimination in the prior 12 months because of their sexual orientation or gender identity.
(e) While state and local laws already prohibit discrimination in public accommodations on the basis of actual or perceived sexual orientation, gender identity, gender expression, and HIV status, the promise of these laws has not yet been fully actualized in long-term care facilities. The purpose of this act is to accelerate the process of freeing LGBT residents and patients from discrimination, both by specifying prohibited discriminatory acts in the long-term care setting and by providing additional information and remedies to ensure that LGBT residents know their rights and have the means to vindicate them.

SEC. 2.

 Section 1338.4 is added to the Health and Safety Code, to read:

1338.4.
 (a) In addition to other training required by this article and other federal and state laws, a skilled nursing facility or intermediate care facility shall provide existing employees and new hires access to the online learning tool, “Building Respect for LGBT Older Adults,” which is available on the National Resource Center on LGBT Aging Internet Web site (www.lgbtagingcenter.org).
(b) This section shall remain in effect only until January 1, 2019, and as of that date is repealed.

SEC. 3.

 Chapter 2.45 (commencing with Section 1439.50) is added to Division 2 of the Health and Safety Code, to read:
CHAPTER  2.45. Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Resident’s Bill of Rights

1439.50.
 For the purposes of this chapter, the following definitions shall apply:
(a) “Gender expression” has the same meaning as defined in Section 51 of the Civil Code.
(b) “Gender identity” means a person’s identity based on the individual’s stated gender identity, without regard to whether the self-identified gender accords with the individual’s physical appearance, surgical history, genitalia, legal sex, sex assigned at birth, or name and sex, as it appears in medical records, and without regard to any contrary statement by any other person, including a family member, conservator, or legal representative. An individual who lacks the present ability to communicate his or her gender identity shall retain the gender identity most recently expressed by that individual.
(c) “Gender-nonconforming” means a person whose gender expression does not conform to stereotypical expectations of how a man or woman should appear or act.
(d) “LGBT” means lesbian, gay, bisexual, or transgender.
(e) “Long-term care facility” or “facility” has the same meaning as in Section 9701 of the Welfare and Institutions Code, and includes intermediate care facilities.
(f) “Long-term care facility staff” or “facility staff” means all individuals employed by or contracted directly with the facility.
(g) “Resident” means a resident or patient of a long-term care facility.
(h) “Transgender” means a person whose gender identity differs from the person’s assigned or presumed sex at birth.
(i) “Transition” means to undergo a process by which a person changes his or her physical sex characteristics or gender expression to match his or her inner sense of being male or female. This process may include, among other things, a name change, a change in preferred pronouns, and a change in social gender expression, as indicated by hairstyle, clothing, and restroom use. Transition may or may not include hormone use and surgery.

1439.51.
 (a) Except as provided in subdivision (b), it shall be unlawful for a long-term care facility or facility staff to take any of the following actions on the basis of a person’s actual or perceived sexual orientation, gender identity, gender expression, or human immunodeficiency virus (HIV) status:
(1) 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.
(2) Deny a request by residents to share a room.
(3) Where rooms are assigned by gender, assign or refuse 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.
(4) Involuntarily reassign a resident to a different room based on any person’s complaints or concerns about that resident’s gender identity or gender expression, unless no other option is available.
(5) 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 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.
(6) Willfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronoun.
(7) Deny a resident the right to wear or be dressed in clothing, accessories, or cosmetics that are permitted for any other resident.
(8) Restrict a resident’s right to associate with other residents or with visitors, including the right to consensual sexual relations, unless the restriction is uniformly applied to all residents in a nondiscriminatory manner. This section does not preclude a facility from banning or restricting sexual relations, as long as the ban or restriction is applied uniformly and in a nondiscriminatory manner.
(9) Deny or restrict medical or nonmedical care that is appropriate to a resident’s organs and bodily needs, or provide medical or nonmedical care in a manner that, to a similarly situated reasonable person, unduly demeans the resident’s dignity or causes avoidable discomfort.
(b) This section shall not apply to the extent that it is incompatible with any professionally reasonable clinical judgment.
(c) 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, or harassment, on the basis of actual or perceived sexual orientation, gender identity, gender expression, or HIV status, or based on association with another individual on account of that individual’s actual or perceived sexual orientation, gender identity, gender expression, or HIV status. You may file a complaint with the Office of the State Long-Term Care Ombudsman [provide contact information] if you believe that you have experienced this kind of discrimination.”

1439.52.
 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.

1439.53.
 (a) 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 (42 U.S.C. Sec. 300gg), if applicable, the Confidentiality of Medical Information Act (Part 2.6 (commencing with Section 56) of Division 1 of the Civil Code), if applicable, regulations promulgated thereunder, and any other applicable provision of federal or state law. A facility shall take any steps as 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.
(b) 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 that resident if the resident is partially or fully unclothed without the express permission of that resident, or his or her legally authorized representative and 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, LGBT 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.

1439.54.

(a)A current or former resident or patient of a skilled nursing facility or intermediate care facility may seek any remedy provided under subdivision (b) of Section 1430.

(b)

1439.54.
 (a) A violation of this chapter shall be treated as a violation under Chapter 2 (commencing with Section 1250), Chapter 2.4 (commencing with Section 1417), or Chapter 3.2 (commencing with Section 1569).

(c)

(b) Notwithstanding any other law, an alleged violation of this chapter shall not serve as the basis for a cause of action against a healthcare professional acting within the scope of his or her licensure and the healthcare professional shall not be subject to civil, administrative, disciplinary, or medical staff action, sanction, penalty, or liability for any loss, injury, or damage caused by the healthcare professional’s failure to act pursuant to this chapter when the act or failure to act is reasonably necessary for the care, health, or safety of the resident.

SEC. 4.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.