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SENATE DOCKET, NO. 2235 FILED ON: 1/20/2023
SENATE . . . . . . . . . . . . . . No. 381
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
Patricia D. Jehlen
_________________
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act establishing an LGBTQI long-term care facility bill of rights.
_______________
PETITION OF:
NAME:DISTRICT/ADDRESS :Patricia D. JehlenSecond MiddlesexRebecca L. RauschNorfolk, Worcester and Middlesex1/23/2023Jack Patrick Lewis7th Middlesex1/23/2023Susannah M. Whipps2nd Franklin2/2/2023Sal N. DiDomenicoMiddlesex and Suffolk2/3/2023Joanne M. ComerfordHampshire, Franklin and Worcester2/9/2023Julian CyrCape and Islands2/23/2023 1 of 9
SENATE DOCKET, NO. 2235 FILED ON: 1/20/2023
SENATE . . . . . . . . . . . . . . No. 381
By Ms. Jehlen, a petition (accompanied by bill, Senate, No. 381) of Patricia D. Jehlen, Rebecca
L. Rausch, Jack Patrick Lewis, Susannah M. Whipps and other members of the General Court
for legislation to establish an LGBTQI long-term care facility bill of rights. Elder Affairs.
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
An Act establishing an LGBTQI long-term care facility bill of rights.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 Chapter 111 of the General Laws is hereby amended by inserting after section 72BB the
2following section:-
3 Section 72CC. (a) As used in this section the following words shall, unless the context
4requires otherwise, have the following meanings:
5 "Gender expression", a person's gender-related appearance and behavior, whether or not
6stereotypically associated with the person's birth sex.
7 "Gender identity" or “Gender”, a person’s gender-related identity, appearance, or
8behavior, whether or not that gender-related identity, appearance or behavior is different from
9that traditionally associated with the person’s physiology or birth sex. Gender-related identity
10may be shown by providing evidence including, but not limited to, medical history, care or
11treatment of the gender-related identity, consistent and uniform assertion of the gender-related
12identity or any other evidence that the gender-related identity is sincerely held as part of a 2 of 9
13person’s core identity; provided, however, that gender-related identity shall not be asserted for
14any improper purpose.
15 "Gender-nonconforming", a person whose gender expression does not conform to
16stereotypical expectations of that person's gender.
17 "Gender transition", a process in which a person begins to live according to that person's
18gender identity, rather than the sex the person was assigned at birth. The process may include
19changing one's clothing, appearance, name, or identification documents or undergoing medical
20treatments.
21 “HIV”, human immunodeficiency virus.
22 "Intersex", a person whose sexual or reproductive anatomy or chromosomal pattern is not
23consistent with typical definitions of male or female.
24 "LGBTQI", lesbian, gay, bisexual, transgender, questioning, queer, and intersex.
25 "Long-term care facility", any institution, whether conducted for charity or profit, that is
26advertised, announced, or maintained for the express or implied purpose of providing 4 or more
27individuals admitted thereto with long-term resident, nursing, convalescent or rehabilitative care;
28supervision and care incident to old age for ambulatory persons; or retirement home care for
29elderly persons. Long-term care facility shall include convalescent or nursing homes, rest homes,
30infirmaries maintained in towns and charitable homes for the aged.
31 "Long-term care facility staff", all individuals employed by, or contracted directly with, a
32long-term care facility. 3 of 9
33 "Non-binary" describes a person whose gender identity falls outside of the traditional
34gender binary structure of man and woman.
35 "Resident", a resident, or patient of a long-term care facility.
36 "Queer", a person whose gender expression, gender identity or sexual orientation does
37not conform to dominant expectations or standards.
38 "Questioning", a person who is exploring or unsure about their own sexual orientation or
39gender identity or expression.
40 "Sexual orientation", a person's romantic or sexual attraction to other people.
41 "Transgender", a person whose gender identity or gender expression differs from the birth
42sex of that person.
43 (b) Except as provided in subsection
44 (c), any long-term care facility and long-term care facility staff are prohibited from taking
45any of the following actions based in whole or in part on a person's actual or perceived sexual
46orientation, gender identity, gender expression, intersex status, or HIV status:
47 (1) denying admission to a long-term care facility, transferring or refusing to transfer a
48resident within a facility or to another facility or discharging or evicting a resident from a
49facility;
50 (2) denying a request by residents to share a room;
51 (3) where rooms are assigned by gender, assigning, reassigning or refusing to assign a
52room to a transgender resident other than in accordance with the transgender resident's gender 4 of 9
53identity, unless at the transgender or resident's request, and assigning, reassigning or refusing to
54assign a room to a non-binary resident other than in accordance with the non-binary resident’s
55preference.
56 (4) prohibiting a resident from using, or harassing a resident who seeks to use or does
57use, a restroom available to other persons of the same gender identity, regardless of whether the
58resident is making a gender transition, has taken or is taking hormones, has undergone gender
59affirmation surgery or presents as gender-nonconforming. For the purposes of this paragraph,
60harassment includes, but is not limited to, requiring a resident to show identity documents in
61order to gain entrance to a restroom available to other persons of the same gender identity;
62 (5) repeatedly and intentionally failing to use a resident's chosen name or pronouns after
63being informed of the chosen name or pronouns, in a manner that constitutes discrimination,
64harassment or bullying;
65 (6) denying a resident the right to wear or be dressed in clothing, accessories or cosmetics
66or to engage in grooming practices that are permitted to any other resident;
67 (7) restricting a resident's right to associate with other residents or with visitors, including
68the right to consensual sexual relations where sexual relations would not be restricted if the
69participants were heterosexual or married;
70 (8) denying or restricting medical or nonmedical care that is appropriate to a resident's
71organs and bodily needs or providing medical or nonmedical care that, to a similarly-situated,
72reasonable person, unduly demeans the resident's dignity or causes avoidable discomfort; or 5 of 9
73 (9) refusing or willfully failing to provide any service, care or reasonable accommodation
74to a resident or an applicant for services or care.
75 (c) The requirements of this section shall not apply to the extent that compliance with the
76requirement is incompatible with any professionally-reasonable clinical judgment.
77 (d) Each facility shall distribute a document containing the following notice alongside the
78informational document required by section 72AA:
79 "[Name of facility] does not discriminate and does not permit discrimination, including,
80but not limited to, bullying, abuse or harassment, on the basis of actual or perceived sexual
81orientation, gender identity, gender expression, intersex status or HIV status or based on
82association with another individual on account of that individual's actual or perceived sexual
83orientation, gender identity, gender expression, intersex status or HIV status. This includes
84residents and staff as well as family members and other visitors to the facility. You may file a
85complaint with the office of the long-term care ombudsman, [provide current contact
86information] if you believe you have experienced this kind of discrimination."
87 (e) Each long-term care facility shall ensure that resident records, including records
88generated at the time of admission, include the resident's gender and the name and pronouns by
89which the resident would like to be identified, as indicated by the resident.
90 (f) Unless required by state or federal law, no long-term care facility shall disclose any
91personal identifying information regarding: (1) a resident's sexual orientation; (2) whether a
92resident is transgender or non-binary; (3) a resident's gender transition status; (4) a resident's
93intersex status; or (5) a resident's HIV status. Long-term care facilities shall take appropriate
94steps to minimize the likelihood of inadvertent or accidental disclosure of such information to 6 of 9
95other residents, visitors, or long-term care facility staff, except when necessary for long-term
96care facility staff to perform their duties.
97 (g) Unless expressly authorized by the resident or the resident's authorized representative,
98long-term facility staff not directly involved in providing direct care to a resident. A facility
99shall use doors, curtains, screens, or other effective visual barriers to provide bodily privacy for
100all residents, including, but not limited to, transgender, non-binary, intersex or gender-
101nonconforming residents, whenever they are partially or fully unclothed.
102 (h) Informed consent shall be required in relation to any non-therapeutic examination,
103observation, or treatment of a resident of the facility.
104 (i) Transgender residents shall be provided access to such transition-related assessments,
105therapy and treatments as have been recommended by the resident's health care provider,
106including, but not limited to, transgender-related medical care, including hormone therapy and
107supportive counseling.
108 (j) LGBTQI-related programming, such as an LGBTQI Pride Month event or a
109Transgender Day of Remembrance event, will be allowed and treated equally to other holidays
110and cultural celebrations or commemorations.
111 (k) The department shall adopt regulations relative to long-term care facilities that violate
112the requirements of this section, or that employ a staff member who violates the requirements of
113this section. The regulations shall include, but not be limited to, civil penalties or other
114administrative action for any long-term care facility found to be in violation of this section.
115Nothing in this act shall be construed to limit the ability to bring any civil, criminal, or
116administrative action for conduct constituting a violation of any other provision of law. 7 of 9
117 (l) (1) Each long-term care facility shall ensure that the long-term care facility staff
118receive training, on at least a biennial basis, concerning:
119 (i) the care of LGBTQI older adults and older adults living with HIV; and
120 (ii) the prevention of discrimination based on sexual orientation, gender identity or
121expression, intersex status, and HIV status.
122 (2)The training required by this section shall include, but not be limited to:
123 (i) the definition of the terms commonly associated with sexual orientation, gender
124identity and expression, intersex status, and HIV status;
125 (ii) best practices for communicating with or about LGBTQI older adults and older adults
126living with HIV, and others who are LGBTQI and/or living with HIV, including the use of the
127name and pronouns by which a resident has expressed the desire to be identified;
128 (iii) a description of the health and social challenges historically experienced by LGBTQI
129older adults and older adults living with HIV, and others who are LGBTQI and/or living with
130HIV, including discrimination when seeking or receiving care at long-term care facilities, and the
131demonstrated physical and mental health effects within the LGBTQI community associated with
132such discrimination;
133 (iv) strategies to create a safe and affirming environment for LGBTQI seniors and
134residents living with HIV, including suggested changes to facility policies and procedures,
135forms, signage, communication between residents and their families, activities and staff training
136and in-services; and
137 (v) an overview of the provisions of this section. 8 of 9
138 (3) The training required by this section shall be provided by an entity that has
139demonstrated expertise in creating safe and affirming environments and identifying the legal,
140social, and medical challenges faced by LGBTQI older adults and older adults living with HIV,
141and others who are LGBTQI and/or living with HIV, who reside in long-term care facilities.
142 (4) Long-term care facility staff shall complete all training required by this section within
1431 year of their date of hire unless the new hire provides the long-term care facility with
144documentation demonstrating that they have completed equivalent training within the past 2
145years.
146 (5) Each long-term care facility shall retain records documenting the completion of the
147training required pursuant to this section by each administrator and staff member at the long-term
148care facility. Compliance records shall be made available, upon request, to the department, the
149executive office of health and human services and the office of the long-term care ombudsman.
150 (6) Each long-term care facility shall assume the cost of providing the training required
151pursuant to this section.
152 (m) The commissioner and the secretary of the executive office of health and human
153services shall adopt rules and regulations as may be necessary to implement the provisions of
154this section.
155 SECTION 2. (a) Each long-term care facility shall designate 2 employees, including 1
156employee representing management at the facility and 1 employee representing direct care staff
157at the facility, to receive in-person training required by section 1 within 6 months of the effective
158date of this act. The designated employees shall serve as points of contact for the long-term care
159facility regarding compliance with the provisions of this act and shall develop a general training 9 of 9
160plan for the facility. In the event a designated employee ceases to be employed by the facility,
161the facility shall designate another employee who is representative of the employee group
162represented by the former designee, who shall complete the in-person training required pursuant
163to this section, serve as a point of contact for the facility regarding compliance with the
164provisions of this act, and have joint responsibility for the facility's training plan.
165 (b) All long-term care facility staff employed by a long-term care facility on the effective
166date of this act, other than an employee designated pursuant to subsection (a), shall complete the
167training required by section 1 within 1 year of the effective date of this act.
168 SECTION 3. This act shall take effect 180 days after the date of enactment.