Lesbian, Gay, Bisexual, And Transgender Long-term Care Facility Residents’ Bill Of Rights - - CA Health And Safety

Section § 1439.50

This law defines several important terms related to gender and identity for use in long-term care facilities. "Gender expression" refers to how someone outwardly displays their gender, as defined elsewhere. "Gender identity" is an individual's personal sense of their gender, regardless of appearance or medical history, and remains the same even if the person can't currently communicate it. "Gender-nonconforming" describes someone who doesn't fit typical gender norms. "LGBT" covers people who are lesbian, gay, bisexual, or transgender. "Transgender" is used for anyone whose gender identity doesn't match their birth sex. "Transition" involves aligning one's physical or social gender with their personal gender identity. Long-term care facilities and their staff are defined as those working in certain healthcare settings.

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” includes facilities listed in Section 1418 of this code and subdivision (b) of Section 9701 of the Welfare and Institutions Code.

(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 physical sex characteristics or gender expression to match the person’s 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.

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(Added by Stats. 2017, Ch. 483, Sec. 3. (SB 219) Effective January 1, 2018.)

Section § 1439.51

This law makes it illegal for long-term care facilities in California to discriminate based on a person's actual or perceived sexual orientation, gender identity, gender expression, or HIV status. Facilities and staff cannot deny admission, transfer, evict, or mistreat residents for these reasons.

It also protects residents' rights to share rooms, use appropriate restrooms, be addressed by their preferred names or pronouns, wear chosen clothing, and engage with others, including consensual sexual relations, without discrimination. Facilities must provide appropriate care without diminishing a resident's dignity.

However, if any provision conflicts with professional clinical judgment, it might not apply. Facilities are required to display a nondiscrimination notice and inform residents on how to file complaints if they experience discrimination.

(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 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:

(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, 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.

(4) 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.

(5) Willfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns.

(6) Deny a resident the right to wear or be dressed in clothing, accessories, or cosmetics that are permitted for any other resident.

(7) 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.

(8) 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.”

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(Added by Stats. 2017, Ch. 483, Sec. 3. (SB 219) Effective January 1, 2018.)

Section § 1439.52

Facilities must have recordkeeping procedures that include noting the gender identity, correct name, and pronoun of each resident, as specified by the resident themselves when they are admitted. This ensures that each resident's identity is respected and recorded properly.

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.

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(Added by Stats. 2017, Ch. 483, Sec. 3. (SB 219) Effective January 1, 2018.)

Section § 1439.53

This law ensures that long-term care facilities keep personal information about residents, such as their sexual orientation, transgender status, transition history, and HIV status, private and only share it as needed for care. It also mandates that staff not involved in direct care cannot be present during a resident's exams or personal care without permission and that proper privacy measures, like curtains or screens, are used. Residents have the right to refuse non-therapeutic examinations or observations for educational or informational purposes without affecting their access to necessary medical care.

(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, if applicable, and any other applicable provision of federal or state law. A facility shall take any steps 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 or 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.

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(Added by Stats. 2017, Ch. 483, Sec. 3. (SB 219) Effective January 1, 2018.)

Section § 1439.54

If someone breaks the rules in this chapter, it will be considered a violation just like breaking the rules in any of the other mentioned chapters, which deal with different health and safety regulations.

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).

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(Added by Stats. 2017, Ch. 483, Sec. 3. (SB 219) Effective January 1, 2018.)