Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S381 Compare Versions

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

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2	2	SENATE DOCKET, NO. 2235 FILED ON: 1/20/2023
3	3	SENATE . . . . . . . . . . . . . . No. 381
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Patricia D. Jehlen
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act establishing an LGBTQI long-term care facility bill of rights.
13	13	_______________
14	14	PETITION OF:
15	15	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
16	16	SENATE DOCKET, NO. 2235 FILED ON: 1/20/2023
17	17	SENATE . . . . . . . . . . . . . . No. 381
18	18	By Ms. Jehlen, a petition (accompanied by bill, Senate, No. 381) of Patricia D. Jehlen, Rebecca
19	19	L. Rausch, Jack Patrick Lewis, Susannah M. Whipps and other members of the General Court
20	20	for legislation to establish an LGBTQI long-term care facility bill of rights. Elder Affairs.
21	21	The Commonwealth of Massachusetts
22	22	_______________
23	23	In the One Hundred and Ninety-Third General Court
24	24	(2023-2024)
25	25	_______________
26	26	An Act establishing an LGBTQI long-term care facility bill of rights.
27	27	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
28	28	of the same, as follows:
29	29	1 Chapter 111 of the General Laws is hereby amended by inserting after section 72BB the
30	30	2following section:-
31	31	3 Section 72CC. (a) As used in this section the following words shall, unless the context
32	32	4requires otherwise, have the following meanings:
33	33	5 "Gender expression", a person's gender-related appearance and behavior, whether or not
34	34	6stereotypically associated with the person's birth sex.
35	35	7 "Gender identity" or “Gender”, a person’s gender-related identity, appearance, or
36	36	8behavior, whether or not that gender-related identity, appearance or behavior is different from
37	37	9that traditionally associated with the person’s physiology or birth sex. Gender-related identity
38	38	10may be shown by providing evidence including, but not limited to, medical history, care or
39	39	11treatment of the gender-related identity, consistent and uniform assertion of the gender-related
40	40	12identity or any other evidence that the gender-related identity is sincerely held as part of a 2 of 9
41	41	13person’s core identity; provided, however, that gender-related identity shall not be asserted for
42	42	14any improper purpose.
43	43	15 "Gender-nonconforming", a person whose gender expression does not conform to
44	44	16stereotypical expectations of that person's gender.
45	45	17 "Gender transition", a process in which a person begins to live according to that person's
46	46	18gender identity, rather than the sex the person was assigned at birth. The process may include
47	47	19changing one's clothing, appearance, name, or identification documents or undergoing medical
48	48	20treatments.
49	49	21 “HIV”, human immunodeficiency virus.
50	50	22 "Intersex", a person whose sexual or reproductive anatomy or chromosomal pattern is not
51	51	23consistent with typical definitions of male or female.
52	52	24 "LGBTQI", lesbian, gay, bisexual, transgender, questioning, queer, and intersex.
53	53	25 "Long-term care facility", any institution, whether conducted for charity or profit, that is
54	54	26advertised, announced, or maintained for the express or implied purpose of providing 4 or more
55	55	27individuals admitted thereto with long-term resident, nursing, convalescent or rehabilitative care;
56	56	28supervision and care incident to old age for ambulatory persons; or retirement home care for
57	57	29elderly persons. Long-term care facility shall include convalescent or nursing homes, rest homes,
58	58	30infirmaries maintained in towns and charitable homes for the aged.
59	59	31 "Long-term care facility staff", all individuals employed by, or contracted directly with, a
60	60	32long-term care facility. 3 of 9
61	61	33 "Non-binary" describes a person whose gender identity falls outside of the traditional
62	62	34gender binary structure of man and woman.
63	63	35 "Resident", a resident, or patient of a long-term care facility.
64	64	36 "Queer", a person whose gender expression, gender identity or sexual orientation does
65	65	37not conform to dominant expectations or standards.
66	66	38 "Questioning", a person who is exploring or unsure about their own sexual orientation or
67	67	39gender identity or expression.
68	68	40 "Sexual orientation", a person's romantic or sexual attraction to other people.
69	69	41 "Transgender", a person whose gender identity or gender expression differs from the birth
70	70	42sex of that person.
71	71	43 (b) Except as provided in subsection
72	72	44 (c), any long-term care facility and long-term care facility staff are prohibited from taking
73	73	45any of the following actions based in whole or in part on a person's actual or perceived sexual
74	74	46orientation, gender identity, gender expression, intersex status, or HIV status:
75	75	47 (1) denying admission to a long-term care facility, transferring or refusing to transfer a
76	76	48resident within a facility or to another facility or discharging or evicting a resident from a
77	77	49facility;
78	78	50 (2) denying a request by residents to share a room;
79	79	51 (3) where rooms are assigned by gender, assigning, reassigning or refusing to assign a
80	80	52room to a transgender resident other than in accordance with the transgender resident's gender 4 of 9
81	81	53identity, unless at the transgender or resident's request, and assigning, reassigning or refusing to
82	82	54assign a room to a non-binary resident other than in accordance with the non-binary resident’s
83	83	55preference.
84	84	56 (4) prohibiting a resident from using, or harassing a resident who seeks to use or does
85	85	57use, a restroom available to other persons of the same gender identity, regardless of whether the
86	86	58resident is making a gender transition, has taken or is taking hormones, has undergone gender
87	87	59affirmation surgery or presents as gender-nonconforming. For the purposes of this paragraph,
88	88	60harassment includes, but is not limited to, requiring a resident to show identity documents in
89	89	61order to gain entrance to a restroom available to other persons of the same gender identity;
90	90	62 (5) repeatedly and intentionally failing to use a resident's chosen name or pronouns after
91	91	63being informed of the chosen name or pronouns, in a manner that constitutes discrimination,
92	92	64harassment or bullying;
93	93	65 (6) denying a resident the right to wear or be dressed in clothing, accessories or cosmetics
94	94	66or to engage in grooming practices that are permitted to any other resident;
95	95	67 (7) restricting a resident's right to associate with other residents or with visitors, including
96	96	68the right to consensual sexual relations where sexual relations would not be restricted if the
97	97	69participants were heterosexual or married;
98	98	70 (8) denying or restricting medical or nonmedical care that is appropriate to a resident's
99	99	71organs and bodily needs or providing medical or nonmedical care that, to a similarly-situated,
100	100	72reasonable person, unduly demeans the resident's dignity or causes avoidable discomfort; or 5 of 9
101	101	73 (9) refusing or willfully failing to provide any service, care or reasonable accommodation
102	102	74to a resident or an applicant for services or care.
103	103	75 (c) The requirements of this section shall not apply to the extent that compliance with the
104	104	76requirement is incompatible with any professionally-reasonable clinical judgment.
105	105	77 (d) Each facility shall distribute a document containing the following notice alongside the
106	106	78informational document required by section 72AA:
107	107	79 "[Name of facility] does not discriminate and does not permit discrimination, including,
108	108	80but not limited to, bullying, abuse or harassment, on the basis of actual or perceived sexual
109	109	81orientation, gender identity, gender expression, intersex status or HIV status or based on
110	110	82association with another individual on account of that individual's actual or perceived sexual
111	111	83orientation, gender identity, gender expression, intersex status or HIV status. This includes
112	112	84residents and staff as well as family members and other visitors to the facility. You may file a
113	113	85complaint with the office of the long-term care ombudsman, [provide current contact
114	114	86information] if you believe you have experienced this kind of discrimination."
115	115	87 (e) Each long-term care facility shall ensure that resident records, including records
116	116	88generated at the time of admission, include the resident's gender and the name and pronouns by
117	117	89which the resident would like to be identified, as indicated by the resident.
118	118	90 (f) Unless required by state or federal law, no long-term care facility shall disclose any
119	119	91personal identifying information regarding: (1) a resident's sexual orientation; (2) whether a
120	120	92resident is transgender or non-binary; (3) a resident's gender transition status; (4) a resident's
121	121	93intersex status; or (5) a resident's HIV status. Long-term care facilities shall take appropriate
122	122	94steps to minimize the likelihood of inadvertent or accidental disclosure of such information to 6 of 9
123	123	95other residents, visitors, or long-term care facility staff, except when necessary for long-term
124	124	96care facility staff to perform their duties.
125	125	97 (g) Unless expressly authorized by the resident or the resident's authorized representative,
126	126	98long-term facility staff not directly involved in providing direct care to a resident. A facility
127	127	99shall use doors, curtains, screens, or other effective visual barriers to provide bodily privacy for
128	128	100all residents, including, but not limited to, transgender, non-binary, intersex or gender-
129	129	101nonconforming residents, whenever they are partially or fully unclothed.
130	130	102 (h) Informed consent shall be required in relation to any non-therapeutic examination,
131	131	103observation, or treatment of a resident of the facility.
132	132	104 (i) Transgender residents shall be provided access to such transition-related assessments,
133	133	105therapy and treatments as have been recommended by the resident's health care provider,
134	134	106including, but not limited to, transgender-related medical care, including hormone therapy and
135	135	107supportive counseling.
136	136	108 (j) LGBTQI-related programming, such as an LGBTQI Pride Month event or a
137	137	109Transgender Day of Remembrance event, will be allowed and treated equally to other holidays
138	138	110and cultural celebrations or commemorations.
139	139	111 (k) The department shall adopt regulations relative to long-term care facilities that violate
140	140	112the requirements of this section, or that employ a staff member who violates the requirements of
141	141	113this section. The regulations shall include, but not be limited to, civil penalties or other
142	142	114administrative action for any long-term care facility found to be in violation of this section.
143	143	115Nothing in this act shall be construed to limit the ability to bring any civil, criminal, or
144	144	116administrative action for conduct constituting a violation of any other provision of law. 7 of 9
145	145	117 (l) (1) Each long-term care facility shall ensure that the long-term care facility staff
146	146	118receive training, on at least a biennial basis, concerning:
147	147	119 (i) the care of LGBTQI older adults and older adults living with HIV; and
148	148	120 (ii) the prevention of discrimination based on sexual orientation, gender identity or
149	149	121expression, intersex status, and HIV status.
150	150	122 (2)The training required by this section shall include, but not be limited to:
151	151	123 (i) the definition of the terms commonly associated with sexual orientation, gender
152	152	124identity and expression, intersex status, and HIV status;
153	153	125 (ii) best practices for communicating with or about LGBTQI older adults and older adults
154	154	126living with HIV, and others who are LGBTQI and/or living with HIV, including the use of the
155	155	127name and pronouns by which a resident has expressed the desire to be identified;
156	156	128 (iii) a description of the health and social challenges historically experienced by LGBTQI
157	157	129older adults and older adults living with HIV, and others who are LGBTQI and/or living with
158	158	130HIV, including discrimination when seeking or receiving care at long-term care facilities, and the
159	159	131demonstrated physical and mental health effects within the LGBTQI community associated with
160	160	132such discrimination;
161	161	133 (iv) strategies to create a safe and affirming environment for LGBTQI seniors and
162	162	134residents living with HIV, including suggested changes to facility policies and procedures,
163	163	135forms, signage, communication between residents and their families, activities and staff training
164	164	136and in-services; and
165	165	137 (v) an overview of the provisions of this section. 8 of 9
166	166	138 (3) The training required by this section shall be provided by an entity that has
167	167	139demonstrated expertise in creating safe and affirming environments and identifying the legal,
168	168	140social, and medical challenges faced by LGBTQI older adults and older adults living with HIV,
169	169	141and others who are LGBTQI and/or living with HIV, who reside in long-term care facilities.
170	170	142 (4) Long-term care facility staff shall complete all training required by this section within
171	171	1431 year of their date of hire unless the new hire provides the long-term care facility with
172	172	144documentation demonstrating that they have completed equivalent training within the past 2
173	173	145years.
174	174	146 (5) Each long-term care facility shall retain records documenting the completion of the
175	175	147training required pursuant to this section by each administrator and staff member at the long-term
176	176	148care facility. Compliance records shall be made available, upon request, to the department, the
177	177	149executive office of health and human services and the office of the long-term care ombudsman.
178	178	150 (6) Each long-term care facility shall assume the cost of providing the training required
179	179	151pursuant to this section.
180	180	152 (m) The commissioner and the secretary of the executive office of health and human
181	181	153services shall adopt rules and regulations as may be necessary to implement the provisions of
182	182	154this section.
183	183	155 SECTION 2. (a) Each long-term care facility shall designate 2 employees, including 1
184	184	156employee representing management at the facility and 1 employee representing direct care staff
185	185	157at the facility, to receive in-person training required by section 1 within 6 months of the effective
186	186	158date of this act. The designated employees shall serve as points of contact for the long-term care
187	187	159facility regarding compliance with the provisions of this act and shall develop a general training 9 of 9
188	188	160plan for the facility. In the event a designated employee ceases to be employed by the facility,
189	189	161the facility shall designate another employee who is representative of the employee group
190	190	162represented by the former designee, who shall complete the in-person training required pursuant
191	191	163to this section, serve as a point of contact for the facility regarding compliance with the
192	192	164provisions of this act, and have joint responsibility for the facility's training plan.
193	193	165 (b) All long-term care facility staff employed by a long-term care facility on the effective
194	194	166date of this act, other than an employee designated pursuant to subsection (a), shall complete the
195	195	167training required by section 1 within 1 year of the effective date of this act.
196	196	168 SECTION 3. This act shall take effect 180 days after the date of enactment.