Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S2604 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	SENATE . . . . . . . . . . . . . . No. 2604
2	2	The Commonwealth of Massachusetts
3	3	_______________
4	4	In the One Hundred and Ninety-Third General Court
5	5	(2023-2024)
6	6	_______________
7	7	SENATE, February 29, 2024.
8	8	The committee on Elder Affairs, to whom was referred the petitions (accompanied by
9	9	bill, Senate, No. 381) of Patricia D. Jehlen, Rebecca L. Rausch, Jack Patrick Lewis, Susannah M.
10	10	Whipps and other members of the General Court for legislation to establish an LGBTQI long-
11	11	term care facility bill of rights; and (accompanied by bill, House, No. 637) of Jack Patrick Lewis,
12	12	Sarah K. Peake and others relative to the right, report the accompanying bill (Senate, No. 2604).
13	13	For the committee,
14	14	Patricia D. Jehlen 1 of 7
15	15	FILED ON: 2/5/2024
16	16	SENATE . . . . . . . . . . . . . . No. 2604
17	17	The Commonwealth of Massachusetts
18	18	_______________
19	19	In the One Hundred and Ninety-Third General Court
20	20	(2023-2024)
21	21	_______________
22	22	An Act establishing an LGBTQI long-term care facility bill of rights.
23	23	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
24	24	of the same, as follows:
25	25	1 Chapter 111 of the General Laws is hereby amended by inserting after section 72BB the
26	26	2following section:-
27	27	3 Section 72CC. (a) As used in this section the following words shall, unless the context
28	28	4requires otherwise, have the following meanings:
29	29	5 "Intersex", a person whose sexual or reproductive anatomy or chromosomal pattern is not
30	30	6consistent with typical definitions of male or female.
31	31	7 "LGBTQI", lesbian, gay, bisexual, transgender, queer, questioning, and intersex.
32	32	8 "Long-term care facility", any institution, whether conducted for charity or profit, that is
33	33	9advertised, announced, or maintained for the express or implied purpose of providing 4 or more
34	34	10individuals admitted thereto with long-term resident, nursing, convalescent, or rehabilitative
35	35	11care; supervision and care incident to old age for ambulatory persons; or retirement home care 2 of 7
36	36	12for elderly persons. Long-term care facility shall include convalescent or nursing homes, rest
37	37	13homes, infirmaries maintained in towns and charitable homes for the aged.
38	38	14 "Long-term care facility staff", all individuals employed by, or contracted directly with, a
39	39	15long-term care facility.
40	40	16  (b) Except as provided in subsection (c), any long-term care facility and long-term care
41	41	17facility staff are prohibited from taking any of the following actions based in whole or in part on
42	42	18a person's actual or perceived sexual orientation, gender identity, gender expression, intersex
43	43	19status, or HIV status:
44	44	20 (1) denying admission to a long-term care facility, transferring or refusing to transfer a
45	45	21resident within a facility or to another facility or discharging or evicting a resident from a
46	46	22facility;
47	47	23 (2) denying a request by residents to share a room;
48	48	24 (3)  where rooms are assigned by gender, assigning, reassigning, or refusing to assign a
49	49	25room to a transgender resident other than in accordance with the transgender resident's gender
50	50	26identity, unless at the transgender or resident's request, and assigning, reassigning or refusing to
51	51	27assign a room to a non-binary resident other than in accordance with the non-binary resident’s
52	52	28preference.
53	53	29 (4) prohibiting a resident from using or harassing a resident who seeks to use or does use,
54	54	30a restroom available to other persons of the same gender identity, regardless of whether the
55	55	31resident is making a gender transition, has taken or is taking hormones, has undergone gender
56	56	32affirmation surgery or presents as gender-nonconforming.  For the purposes of this paragraph, 3 of 7
57	57	33harassment includes, but is not limited to, requiring a resident to show identity documents in
58	58	34order to gain entrance to a restroom available to other persons of the same gender identity;
59	59	35 (5) repeatedly and intentionally failing to use a resident's chosen name or pronouns after
60	60	36being informed of the chosen name or pronouns, in a manner that constitutes discrimination,
61	61	37harassment or bullying;
62	62	38 (6) denying a resident the right to wear or be dressed in clothing, accessories or cosmetics
63	63	39or to engage in grooming practices that are permitted to any other resident;
64	64	40 (7) restricting a resident's right to associate with other residents or with visitors, including
65	65	41the right to consensual sexual relations where sexual relations would not be restricted if the
66	66	42participants were heterosexual or married;
67	67	43 (8) denying or restricting medical or nonmedical care that is appropriate to a resident's
68	68	44organs and bodily needs or providing medical or nonmedical care that, to a similarly-situated,
69	69	45reasonable person, unduly demeans the resident's dignity or causes avoidable discomfort; or
70	70	46 (9) refusing or willfully failing to provide any service, care or reasonable accommodation
71	71	47to a resident or an applicant for services or care.
72	72	48 (c) The requirements of this section shall not apply to the extent that compliance with the
73	73	49requirement is incompatible with any professionally reasonable clinical judgment.
74	74	50 (d) Each facility shall distribute a document containing the following notice alongside the
75	75	51informational document required by section 72AA:
76	76	52 "[Name of facility] does not discriminate and does not permit discrimination, including,
77	77	53but not limited to, bullying, abuse or harassment, on the basis of actual or perceived sexual 4 of 7
78	78	54orientation, gender identity, gender expression, intersex status or HIV status or based on
79	79	55association with another individual on account of that individual's actual or perceived sexual
80	80	56orientation, gender identity, gender expression, intersex status or HIV status.  This includes
81	81	57residents and staff as well as family members and other visitors to the facility. You may file a
82	82	58complaint with the office of the long-term care ombudsman, [provide current contact
83	83	59information] if you believe you have experienced this kind of discrimination."
84	84	60 (e) Each long-term care facility shall ensure that resident records, including records
85	85	61generated at the time of admission, include the resident's gender and the name and pronouns by
86	86	62which the resident would like to be identified, as indicated by the resident.
87	87	63  (f) Unless required by state or federal law, no long-term care facility shall disclose any
88	88	64personal identifying information regarding: (1) a resident's sexual orientation; (2) whether a
89	89	65resident is transgender or non-binary; (3) a resident's gender transition status; (4) a resident's
90	90	66intersex status; or (5) a resident's HIV status. Long-term care facilities shall take appropriate
91	91	67steps to minimize the likelihood of inadvertent or accidental disclosure of such information to
92	92	68other residents, visitors, or long-term care facility staff, except when necessary for long-term
93	93	69care facility staff to perform their duties.
94	94	70 (g) Unless expressly authorized by the resident or the resident's authorized representative,
95	95	71long-term facility staff not directly involved in providing direct care to a resident, including but
96	96	72not limited to, transgender, intersex, or gender nonconforming resident, shall not be present
97	97	73during physical examination of, or the provision of personal care to, that resident if the resident
98	98	74is partially or fully unclothed.  A facility shall use doors, curtains, screens, or other effective
99	99	75visual barriers to provide bodily privacy for all residents, including, but not limited to, 5 of 7
100	100	76transgender, non-binary, intersex, or gender-nonconforming residents, whenever they are
101	101	77partially or fully unclothed.
102	102	78 (h) Informed consent shall be required in relation to any non-therapeutic examination,
103	103	79observation, or treatment of a resident of the facility.
104	104	80 (i) Transgender residents shall be provided access to such transition-related assessments,
105	105	81therapy and treatments as have been recommended by the resident's health care provider,
106	106	82including, but not limited to, transgender-related medical care, including hormone therapy and
107	107	83supportive counseling.
108	108	84 (j) LGBTQI-related programming, such as an LGBTQI Pride Month event or a
109	109	85Transgender Day of Remembrance event, shall be allowed and treated equally to other holidays
110	110	86and cultural celebrations or commemorations.
111	111	87  (k) The department shall adopt regulations relative to long-term care facilities that
112	112	88violate the requirements of this section, or that employ a staff member who violates the
113	113	89requirements of this section. The regulations shall include, but not be limited to, civil penalties or
114	114	90other administrative action for any long-term care facility found to be in violation of this section.
115	115	91Nothing in this act shall be construed to limit the ability to bring any civil, criminal, or
116	116	92administrative action for conduct constituting a violation of any other provision of law.
117	117	93 (l) (1) Each long-term care facility shall ensure that the long-term care facility staff
118	118	94receive training, concerning:
119	119	95 (i) the care of LGBTQI older adults and older adults living with HIV; and 6 of 7
120	120	96 (ii) the prevention of discrimination based on sexual orientation, gender identity or
121	121	97expression, intersex status, and HIV status.
122	122	98 (2) The training required by this section shall be provided by EOEA or MDPH, or
123	123	99another entity that has demonstrated expertise in creating safe and affirming environments and
124	124	100identifying the legal, social, and medical challenges faced by LGBTQI older adults and older
125	125	101adults living with HIV, and others who are LGBTQI and/or living with HIV, who reside in long-
126	126	102term care facilities.
127	127	103 (3) Each long-term care facility shall retain records documenting the completion of the
128	128	104training required pursuant to this section by each administrator and staff member at the long-term
129	129	105care facility. Compliance records shall be made available, upon request, to the department, the
130	130	106executive office of health and human services and the office of the long-term care ombudsman.
131	131	107 (4) Each long-term care facility shall assume the cost of providing the training required
132	132	108pursuant to this section.
133	133	109  (m) The commissioner and the secretary of the executive office of health and human
134	134	110services shall adopt rules and regulations as may be necessary to implement the provisions of
135	135	111this section.
136	136	112 SECTION 2. All long-term care facility staff employed by a long-term care facility on
137	137	113the effective date of this act, other than an employee designated pursuant to subsection (a), shall
138	138	114complete the training required by section 1 within 1 year of the effective date of this act.  Long-
139	139	115term care facility staff hired after the effective date shall complete all training required by this
140	140	116section within 1 year of their date of hire unless the new hire provides the long-term care facility 7 of 7
141	141	117with documentation demonstrating that they have completed equivalent training within the past 2
142	142	118years. All long-term care facility staff are required to take this training every two years.
143	143	119 SECTION 3. This act shall take effect 180 days after the date of enactment.