New York NH & ACF Provider Alert – Resident Rights

On March 18, 2024, the New York State Department of Health (NYSDOH) issued new DALs for nursing home and adult care facility providers, “Long-Term Care Facility Residents’ Bill of Rights Amendment.”

Effective May 28, 2024, Public Health Law section 2803-c-2 establishes that it is unlawful for a nursing home or adult care facility to take/fail to take certain actions (wholly or partially) based on a resident’s:

  • Actual or perceived sexual orientation
  • Gender identity or expression
  • Human immunodeficiency virus (HIV) status

For these individuals, the new guidance states that New York NHs/ACFs may not:

  • Deny admission to the facility
  • Transfer/refuse to transfer a resident within a facility or to another facility
  • Discharge or evict a resident from a facility
  • Deny a request by residents to share a room
  • Assign, reassign or refuse to assign a room to a resident other than in accordance with the resident’s gender identity, when rooms are assigned by gender, unless at the resident’s request
  • Willfully and repeatedly fail to use a resident’s preferred name and pronouns after being clearly informed of the preferred name or pronouns
  • Deny a resident the right to wear or be dressed in clothing/ accessories/ cosmetics that are permitted for other residents
  • Restrict a resident’s right to associate with other residents or visitors, including the right to consensual sexual relations, unless the restriction is applied in a uniform manner to all residents in a nondiscriminatory manner
  • Deny or restrict a resident from accessing appropriate medical or nonmedical care

The document states that these provisions do not apply where they are incompatible with any professionally reasonable clinical judgement.

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Nursing homes and adult care facilities must post notices about their non-discrimination policies and information about reporting violations to the Office of the New York State Long-Term Care Ombudsman Program (LTCOP). The DALs include a template with required verbiage with must be posted alongside the facility’s Non-Discrimination Policy effective May 28, 2024.

In addition to the above, facilities have other responsibilities to be mindful of. These include documentation, privacy and training components which providers may already have in place but may need to be tweaked for compliance with these requirements.

  • Record keeping procedures that include the residents’ gender identify, preferred name and/or pronoun, as indicated by the resident

    ·       Protecting personally identifiable information regarding the residents’ sexual orientation, whether the resident is transgender, a resident’s transition history (if applicable), and HIV status from unauthorized disclosure. The facility must take reasonably necessary steps to prevent inadvertent/incidental disclosure of this information to others, including facility staff, other residents and visitors.

  • Ensure facility staff who are not providing direct care to residents are not present either during physical examinations or personal care provision without the resident or representative’s express permission
  • Provide cultural competency training for all staff members at least once every two years. This training must focus on residents who identify as gay, lesbian, bisexual or transgender, and/or residents living with HIV.

View the March 18, 2024 DAL NH #24-09 / DAL ACF #24-19 for full details and the required posting information.

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