(a)
Short Title. This Section 3304.1 shall be known and may be referenced as the "LGBT Long-term Care Facility Residents' Bill of Rights." (b) Findings and Purpose. In 2006, the California Legislature found that "lifelong experiences of marginalization place lesbian, gay, bisexual, and transgender (LGBT) seniors at high risk for isolation, poverty, homelessness, and premature institutionalization. Moreover, many LGBT seniors are members of multiple under represented groups, and as a result, are doubly marginalized. Due to these factors, many LGBT seniors avoid accessing elder programs and services, even when their health, safety, and security depend on it." California Welfare and Institutions Code § 9103.
Recent studies confirm the state's findings and provide evidence that LGBT seniors experience discrimination, including in long-term care facilities, where residents are particularly vulnerable because they must rely on others for necessary care and services, and may no longer enjoy the privacy of having their own home or even their own room.
Discrimination against LGBT individuals in long-term care facilities has gone largely unaddressed according to "Stories from the Field: LGBT Older Adults in Long-Term Care Facilities," a 2011 study published by the National Senior Citizens Law Center. In that study, 43% of respondents reported personally witnessing or experiencing instances of mistreatment of LGBT seniors in a long-term care facility, including: verbal or physical harassment from other residents; being refused admission or re-admission or being abruptly discharged; verbal or physical harassment from staff; staff refusal to accept medical power of attorney from the resident's spouse or partner; discriminatory restrictions on visitation; and staff refusal to refer to a transgender resident by his or her preferred name or pronoun. 81% of respondents believed that other residents would discriminate against an LGBT elder in a long-term care facility; 89% of respondents believed that staff would discriminate against an LGBT elder in a long-term care facility; and 53% believed that staff discrimination would rise to the level of abuse or neglect.
Even more recently, in 2013, the San Francisco LGBT Aging Policy Task Force commissioned a report by Professor Karen Fredriksen-Goldsen of the University of Washington, "Addressing the Needs of LGBT Older Adults in San Francisco: Recommendations for the Future," based on information collected from over 600 LGBT seniors residing in San Francisco, including nearly 140 LGBT seniors of color. This report found that nearly 60% of the study participants lived alone, and of the 15% with children, 60% reported that these children would not be available to assist them. Many reported poor physical and mental health: nearly one third of all respondents reported poor general health; close to half reported having one or more disabilities; and one third of male participants reported that they were living with HIV or AIDS. These results indicate that, as compared to seniors in San Francisco generally, LGBT seniors have a heightened need for care but often lack family support networks available to non-LG BT seniors. Further, LGBT seniors' fear of accessing services is justified. Nearly half of the participants in the San Francisco study reported experiencing discrimination in the prior 12 months because of their sexual orientation or gender identity.
While state and local laws already prohibit discrimination in public accommodations on the basis of actual or perceived sexual orientation, gender identity, gender expression, and HIV status, the promise of these laws has not yet been fully actualized in long-term care facilities. The purpose of this LGBT Long-term Care Facility Residents' Bill of Rights is to accelerate the process of freeing LGBT residents and patients from discrimination, both by specifying prohibited discriminatory acts in the long-term care setting and by providing additional information and remedies to ensure that LGBT residents know their rights-and have the means to vindicate them.
(c) Definitions. For the purposes of this Section 3304.1, "City" means the City and County of San Francisco.
"Gender Expression" means a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth.
"Gender Identity" means a person's gender as designated by that person. A person's gender identity shall be determined 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 used by that individual prior to losing his or her expressive capacity.
"Gender-nonconforming" means a person whose Gender Expression does not conform to stereotypical expectations of how a man or woman should appear or act.
"HRC" means the San Francisco Human Rights Commission.
"LGBT" means lesbian, gay, bisexual, or transgender.
"Long-term Care Facility" or "Facility" has the same meaning as in California Welfare and Institutions Code section 9701, as amended from time to time, and refers only to those Facilities that are located within the geographical boundaries of the City. Long-term Care Facilities include both privately owned and City-owned Facilities.
"Long-term Care Facility Staff' or "Facility Staff" means all directors, medical personnel, administrators, employees, independent contractors, and others who provide services or care to Residents of a Long-term Care Facility on Facility premises and on behalf of or with the permission of the Facility.
"Ombudsman Program" means the San Francisco Long-Term Care Ombudsman Program, a program mandated by the Older Americans Act and the Older Californians Act to investigate and resolve complaints regarding care in long-term care facilities.
"Resident" means a short-term or long-term resident or patient of a Long-term Care Facility.
"Transgender" means a person whose Gender Identity differs from his or her assigned or presumed sex at birth.
"Transition" means to undergo a process by which a person changes their physical sex characteristics and/or Gender Expression to match their 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.
(d) Prohibited Activity. It shall be unlawful for any 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 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 evict or involuntarily discharge a Resident from a Facility;
(2) Deny a request by two Residents to share a room;
(3) Where rooms are assigned by gender, assign or refuse 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) Involuntarily reassign a Resident to a different room based on any person's complaints or concerns about that Resident's Gender Identity or Gender Expression;
(5) 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;
(6) Refuse to use a Resident's preferred name or preferred pronoun;
(7) Deny a Resident the right to wear or be dressed in clothing, accessories, or cosmetics that are permitted for any other Resident;
(8) Restrict a Resident's right to associate with other Residents, including the right to sexual intimacy;
(9) Deny a Resident's right to receive or restrict a Resident's right to associate with visitors of his or her choice, including the right to sexual intimacy; or
(10) Deny or restrict medical or non-medical care that is appropriate to a Resident's organs and bodily needs, or provide medical or non-medical care in a manner that demeans the Resident's dignity or causes avoidable discomfort.
(e) Exception. The prohibitions in subsection (d) of this Section 3304.1 shall not apply to the extent that they are incompatible with any professionally reasonable clinical judgment that is based on articulable facts of clinical significance. (f) Additional Requirements.
(1) Recordkeeping. Facilities shall employ procedures for recordkeeping, including but not limited to records generated at the time of admission, that include the Gender Identity, preferred name, and preferred pronoun of each Resident.
(2) Confidentiality and Privacy.
(A) Confidentiality. Long-term Care Facilities shall protect personally identifiable information regarding Residents' sexual orientation, Transgender status, Transition history, and HIV status from unauthorized disclosure, as required by the Health Insurance Portability and Accountability Act, the California Medical Information Act, Article 1 of the California Constitution, the California Health and Safety Code and regulations promulgated thereunder, and any other applicable provision of federal or state law. Facilities shall take such steps as reasonably necessary to minimize the likelihood of inadvertent or incidental disclosure of such information to other Residents, visitors, or Facility Staff except to the minimum extent necessary for Facility Staff to perform their duties.
(B) Privacy. Persons not directly involved in providing personal or medical care to a Transgender or Gender-nonconforming Resident shall not be present during case discussions, physical examination, treatment, or the provision of personal care to that Resident without the express permission of that Resident. Facilities shall use doors, curtains, screens, or other effective visual barriers to provide bodily privacy to Transgender or Gender-nonconforming Residents whenever such Residents are partially or fully unclothed. In addition, LGBT Residents shall be informed 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, and such refusal shall not diminish the Resident's access to care for the primary purpose of diagnosis or treatment.
(3) LGBT Liaison. Each Facility shall designate a staff member to serve as an LGBT liaison and shall submit the name and contact information of the designated staff member to the HRC and Ombudsman Program. The LGBT liaison shall complete an annual training concerning the requirements of this Section 3304.1 and general LGBT cultural competency that shall be organized and sponsored by the HRC and Ombudsman Program. (4) Anti-discrimination Notice. 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 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 San Francisco Human Rights Commission [provide contact information] or the Long-Term Care Ombudsman [provide contact information] if you believe that you have experienced this kind of discrimination."
(g) Publications. Within six months of the effective date of this Section 3304.1, the HRC, in collaboration with the Ombudsman Program, shall publish a layperson's handbook to assist Facilities in complying with this Section 3304.1 and to suggest model practices to serve the needs of LGBT Residents. The HRC shall also collaborate with the Ombudsman Program to publish a list of medical providers available to provide medical care to Transgender Residents of Long-term Care Facilities and shall update this list on an annual basis. (1) Human Rights Commission. Any person who believes that a Facility or Facility Staff has discriminated against him or her in violation of Sections 3304.1 or 3305.2, as that Section 3305.2 applies to the rights protected by Section 3304.1, may file a complaint with the Human Rights Commission, which shall serve as a request to have the Commission investigate and mediate the complaint pursuant to Section 12A.5 of the Administrative Code. (2) Civil Action. Any aggrieved person may enforce the provisions of Sections 3304.1 or 3305.2, as that Section 3305.2 applies to the rights protected by Section 3304.1, against privately owned Facilities or their Staff by means of a civil action. Any privately owned Facility or its Staff found to have violated any of the provisions of Sections 3304.1 or 3305.2, as that Section 3305.2 applies to the rights protected by Section 3304.1, or to have aided in any such violation, shall be liable for, and the court must award to the individual whose rights are violated, three times the amount of special and general damages. The court may also award punitive damages in an amount not less than $200 but not more than $400, as well as attorneys' fees and costs of action. There shall be no right of action under this subsection 3304.1(h)(2) against the City or its officers, agents, or employees. (3) Injunction. Any privately owned Facility or its Staff that commits, or proposes to commit, an act in violation of Sections 3304.1 or 3305.2, as that Section 3305.2 applies to the rights protected by Section 3304.1, may be enjoined therefrom by any court of competent jurisdiction. An action for injunction under this subsection (h)(3) may be brought by any aggrieved person, by the District Attorney, by the City Attorney, or by any person or entity that will fairly and adequately represent the interests of the protected class. There shall be no right to injunctive relief under this subsection 3304.1(h)(3) against the City or its officers, agents, or employees. (4) Limitation. An aggrieved person must file a complaint with the Human Rights Commission pursuant to subsection 3304.1(h)(1) or a civil action pursuant to subsection 3304.1(h)(2) within one year of the alleged violation of Section 3304.1 or 3305.2, as that Section 3305.2 applies to the rights protected by Section 3304.1. (5) Bar. A complaint to the Human Rights Commission pursuant to subsection 3304.1(h)(1) is not a prerequisite to the filing of a civil action pursuant to subsection 3304.1(h)(2) or to seeking injunctive relief pursuant to subsection 3304.1(h)(3). The pendency of a complaint before the Human Rights Commission shall not bar any civil action, but a final judgment in any civil action involving the same parties and claims shall bar any further proceedings by the Human Rights Commission. (6) Exclusive Remedies. Sections 3306 and 3307 notwithstanding, the provisions of this Section 3304.1(h) shall be the exclusive remedies for violations of Sections 3304.1 or 3305.2, as that Section 3305.2 applies to the rights protected by Section 3304.1. (Added by Ord. , File No. 150118, App. 4/16/2015, Eff. 5/16/2015)
