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AMENDED IN ASSEMBLY JULY 12, 2017

AMENDED IN ASSEMBLY JULY 5, 2017


AMENDED IN ASSEMBLY JUNE 22, 2017
AMENDED IN SENATE MAY 26, 2017
AMENDED IN SENATE MAY 3, 2017
AMENDED IN SENATE APRIL 6, 2017
AMENDED IN SENATE MARCH 21, 2017

SENATE BILL No. 219

Introduced by Senator Wiener


(Principal coauthor: Assembly Member Chiu)
(Coauthor: Assembly Member Cervantes)

February 1, 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 counsels 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.

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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 Residents 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 persons 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 residents
preferred name or pronouns after being clearly informed of the preferred
name and pronouns and or pronouns, or 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, other
things, 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. By expanding the definition of existing crimes, the bill would
impose a state-mandated local program.

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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.
State-mandated local program: yes.

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

line 1 SECTION 1. The Legislature finds and declares all of the


line 2 following:
line 3 (a)In 2006, the California Legislature found that lifelong
line 4 experiences of marginalization place lesbian, gay, bisexual, and
line 5 transgender (LGBT) seniors at high risk for isolation, poverty,
line 6 homelessness, and premature institutionalization. Moreover, many
line 7 LGBT seniors are members of multiple underrepresented groups,
line 8 and as a result, are doubly marginalized. Due to these factors, many
line 9 LGBT seniors avoid accessing elder programs and services, even
line 10 when their health, safety, and security depend on it.
line 11 (b)Recent studies confirm the states findings and provide
line 12 evidence that LGBT seniors experience discrimination, including
line 13 in long-term care facilities where residents are particularly
line 14 vulnerable because they must rely on others for necessary care and
line 15 services, and may no longer enjoy the privacy of having their own
line 16 home or even their own room.
line 17 (c)According to Stories from the Field: LGBT Older Adults
line 18 in Long-Term Care Facilities, a 2011 study published by the
line 19 National Senior Citizens Law Center, these issues have gone
line 20 unaddressed. In that study, 43 percent of respondents reported
line 21 personally witnessing or experiencing instances of mistreatment
line 22 of LGBT seniors in a long-term care facility, including all of the
line 23 following: being refused admission or readmission, being abruptly
line 24 discharged, verbal or physical harassment from staff, staff refusal
line 25 to accept medical power of attorney from the residents spouse or
line 26 partner, discriminatory restrictions on visitation, and staff refusal
line 27 to refer to a transgender resident by his or her preferred name or
line 28 pronoun. Eighty-one percent of respondents believed that other
line 29 residents would discriminate against an LGBT elder in a long-term
line 30 care facility, 89 percent of respondents believed that staff would

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line 1 discriminate against an LGBT elder in a long-term care facility,


line 2 and 53 percent believed that staff discrimination would rise to the
line 3 level of abuse or neglect. Though this was a national report, it
line 4 included instances of severe discrimination within California.
line 5 (d)Even more recently, in 2013, the San Francisco LGBT Aging
line 6 Policy Task Force commissioned a report by Professor Karen
line 7 Fredriksen-Goldsen of the University of Washington, Addressing
line 8 the Needs of LGBT Older Adults in San Francisco:
line 9 Recommendations for the Future, based on information collected
line 10 from over 600 LGBT seniors residing in San Francisco, including
line 11 nearly 140 LGBT seniors of color. This report found that nearly
line 12 60 percent of the study participants lived alone, and of the 15
line 13 percent of the study participants who had children, 60 percent
line 14 reported that these children would not be available to assist them.
line 15 Many reported poor physical and mental health with nearly
line 16 one-third of all respondents reported poor general health, close to
line 17 one-half reported having one or more disabilities, and one-third
line 18 of male participants reported that they were living with human
line 19 immunodeficiency virus (HIV) or acquired immune deficiency
line 20 syndrome (AIDS). These results indicate that, as compared to
line 21 seniors in San Francisco generally, LGBT seniors have a
line 22 heightened need for care, but often lack family support networks
line 23 available to non-LGBT seniors. Further, LGBT seniors fear of
line 24 accessing services is justified. Nearly one-half of the participants
line 25 in the San Francisco study reported experiencing discrimination
line 26 in the prior 12 months because of their sexual orientation or gender
line 27 identity.
line 28 (e)While state and local laws already prohibit discrimination
line 29 in public accommodations on the basis of actual or perceived sexual
line 30 orientation, gender identity, gender expression, and HIV status,
line 31 the promise of these laws has not yet been fully actualized in
line 32 long-term care facilities. The purpose of this act is to accelerate
line 33 the process of freeing LGBT residents and patients from
line 34 discrimination, both by specifying prohibited discriminatory acts
line 35 in the long-term care setting and by providing additional
line 36 information and remedies to ensure that LGBT residents know
line 37 their rights and have the means to vindicate them.
line 38 SEC. 2. Section 1338.4 is added to the Health and Safety Code,
line 39 to read:

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line 1 1338.4. (a)In addition to other training required by this article


line 2 and other federal and state laws, a skilled nursing facility or
line 3 intermediate care facility shall provide existing employees and
line 4 new hires access to the online learning tool, Building Respect for
line 5 LGBT Older Adults, which is available on the National Resource
line6 Center on LGBT Aging Internet Web site
line 7 (www.lgbtagingcenter.org).
line 8 (b)This section shall remain in effect only until January 1, 2019,
line 9 and as of that date is repealed.
line 10 SEC. 3. Chapter 2.45 (commencing with Section 1439.50) is
line 11 added to Division 2 of the Health and Safety Code, to read:
line 12
line 13 Chapter 2.45. Lesbian, Gay, Bisexual, and Transgender
line 14 Long-Term Care Facility Residents Bill of Rights
line 15
line 16 1439.50. For the purposes of this chapter, the following
line 17 definitions shall apply:
line 18 (a)Gender expression has the same meaning as defined in
line 19 Section 51 of the Civil Code.
line 20 (b)Gender identity means a persons identity based on the
line 21 individuals stated gender identity, without regard to whether the
line 22 self-identified gender accords with the individuals physical
line 23 appearance, surgical history, genitalia, legal sex, sex assigned at
line 24 birth, or name and sex, as it appears in medical records, and without
line 25 regard to any contrary statement by any other person, including a
line 26 family member, conservator, or legal representative. An individual
line 27 who lacks the present ability to communicate his or her gender
line 28 identity shall retain the gender identity most recently expressed
line 29 by that individual.
line 30 (c)Gender-nonconforming means a person whose gender
line 31 expression does not conform to stereotypical expectations of how
line 32 a man or woman should appear or act.
line 33 (d)LGBT means lesbian, gay, bisexual, or transgender.
line 34 (e)Long-term care facility or facility has the same meaning
line 35 as in Section 9701 of the Welfare and Institutions Code, and
line 36 includes intermediate care facilities.
line 37 (f)Long-term care facility staff or facility staff means all
line 38 individuals employed by or contracted directly with the facility.
line 39 (g)Resident means a resident or patient of a long-term care
line 40 facility.

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line 1 (h)Transgender means a person whose gender identity differs


line 2 from the persons assigned or presumed sex at birth.
line 3 (i)Transition means to undergo a process by which a person
line 4 changes his or her physical sex characteristics or gender expression
line 5 to match his or her inner sense of being male or female. This
line 6 process may include, among other things, a name change, a change
line 7 in preferred pronouns, and a change in social gender expression,
line 8 as indicated by hairstyle, clothing, and restroom use. Transition
line 9 may or may not include hormone use and surgery.
line 10 1439.51. (a)Except as provided in subdivision (b), it shall be
line 11 unlawful for a long-term care facility or facility staff to take any
line 12 of the following actions wholly or partially on the basis of a
line 13 persons actual or perceived sexual orientation, gender identity,
line 14 gender expression, or human immunodeficiency virus (HIV) status:
line 15 (1)Deny admission to a long-term care facility, transfer or refuse
line 16 to transfer a resident within a facility or to another facility, or
line 17 discharge or evict a resident from a facility.
line 18 (2)Deny a request by residents to share a room.
line 19 (3)Where rooms are assigned by gender, assigning, reassigning,
line 20 or refusing to assign a room to a transgender resident other than
line 21 in accordance with the transgender residents gender identity,
line 22 unless at the transgender residents request.
line 23 (4)Prohibit a resident from using, or harass a resident who seeks
line 24 to use or does use, a restroom available to other persons of the
line 25 same gender identity, regardless of whether the resident is making
line 26 a gender transition or appears to be gender-nonconforming.
line 27 Harassment includes, but is not limited to, requiring a resident to
line 28 show identity documents in order to gain entrance to a restroom
line 29 available to other persons of the same gender identity.
line 30 (5)Willfully and repeatedly fail to use a residents preferred
line 31 name or pronouns after being clearly informed of the preferred
line 32 name or pronouns.
line 33 (6)Deny a resident the right to wear or be dressed in clothing,
line 34 accessories, or cosmetics that are permitted for any other resident.
line 35 (7)Restrict a residents right to associate with other residents
line 36 or with visitors, including the right to consensual sexual relations,
line 37 unless the restriction is uniformly applied to all residents in a
line 38 nondiscriminatory manner. This section does not preclude a facility
line 39 from banning or restricting sexual relations, as long as the ban or
line 40 restriction is applied uniformly and in a nondiscriminatory manner.

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line 1 (8)Deny or restrict medical or nonmedical care that is


line 2 appropriate to a residents organs and bodily needs, or provide
line 3 medical or nonmedical care in a manner that, to a similarly situated
line 4 reasonable person, unduly demeans the residents dignity or causes
line 5 avoidable discomfort.
line 6 (b)This section shall not apply to the extent that it is
line 7 incompatible with any professionally reasonable clinical judgment.
line 8 (c)Each facility shall post the following notice alongside its
line 9 current nondiscrimination policy in all places and on all materials
line 10 where that policy is posted:
line 11
line 12 [Name of facility] does not discriminate and does not permit
line 13 discrimination, including, but not limited to, bullying, abuse, or
line 14 harassment, on the basis of actual or perceived sexual orientation,
line 15 gender identity, gender expression, or HIV status, or based on
line 16 association with another individual on account of that individuals
line 17 actual or perceived sexual orientation, gender identity, gender
line 18 expression, or HIV status. You may file a complaint with the Office
line 19 of the State Long-Term Care Ombudsman [provide contact
line 20 information] if you believe that you have experienced this kind of
line 21 discrimination.
line 22
line 23 1439.52. A facility shall employ procedures for recordkeeping,
line 24 including, but not limited to, records generated at the time of
line 25 admission, that include the gender identity, correct name, as
line 26 indicated by the resident, and pronoun of each resident, as indicated
line 27 by the resident.
line 28 1439.53. (a)Long-term care facilities shall protect personally
line 29 identifiable information regarding residents sexual orientation,
line 30 whether a resident is transgender, a residents transition history,
line 31 and HIV status from unauthorized disclosure, as required by the
line 32 federal Health Insurance Portability and Accountability Act of
line 33 1996 (42 U.S.C. Sec. 300gg), if applicable, the Confidentiality of
line 34 Medical Information Act (Part 2.6 (commencing with Section 56)
line 35 of Division 1 of the Civil Code), if applicable, regulations
line 36 promulgated thereunder, and, if applicable, and any other
line 37 applicable provision of federal or state law. A facility shall take
line 38 any steps as reasonably necessary to minimize the likelihood of
line 39 inadvertent or incidental disclosure of that information to other

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line 1 residents, visitors, or facility staff, except to the minimum extent


line 2 necessary for facility staff to perform their duties.
line 3 (b)Long-term care facility staff not directly involved in
line 4 providing direct care to a resident, including, but not limited to, a
line 5 transgender or gender-nonconforming resident, shall not be present
line 6 during physical examination or the provision of personal care to
line 7 that resident if the resident is partially or fully unclothed without
line 8 the express permission of that resident, or his or her legally
line 9 authorized representative and responsible party. A facility shall
line 10 use doors, curtains, screens, or other effective visual barriers to
line 11 provide bodily privacy for all residents, including, but not limited
line 12 to, transgender or gender-nonconforming residents, whenever they
line 13 are partially or fully unclothed. In addition, all residents, including,
line 14 but not limited to, LGBT residents, shall be informed of and have
line 15 the right to refuse to be examined, observed, or treated by any
line 16 facility staff when the primary purpose is educational or
line 17 informational rather than therapeutic, or for resident appraisal or
line 18 reappraisal, and that refusal shall not diminish the residents access
line 19 to care for the primary purpose of diagnosis or treatment.
line 20 1439.54. A violation of this chapter shall be treated as a
line 21 violation under Chapter 2 (commencing with Section 1250),
line 22 Chapter 2.4 (commencing with Section 1417), or Chapter 3.2
line 23 (commencing with Section 1569).
line 24 SEC. 4. No reimbursement is required by this act pursuant to
line 25 Section 6 of Article XIIIB of the California Constitution because
line 26 the only costs that may be incurred by a local agency or school
line 27 district will be incurred because this act creates a new crime or
line 28 infraction, eliminates a crime or infraction, or changes the penalty
line 29 for a crime or infraction, within the meaning of Section 17556 of
line 30 the Government Code, or changes the definition of a crime within
line 31 the meaning of Section 6 of Article XIII B of the California
line 32 Constitution.

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