Care for LGBTQ Seniors and Seniors with HIV Amendment Act of 2020: New Protections for Long-Term Care Facility Residents in the District of Columbia

As our society continues to evolve towards greater inclusivity and acceptance, it is crucial to ensure that vulnerable populations, including LGBTQ seniors and seniors living with HIV, are protected, and respected in all aspects of life, including long-term care facilities.

DC Law 23-154, known as the "Care for LGBTQ Seniors and Seniors with HIV Amendment Act of 2020," was enacted by the Council of the District of Columbia to provide rights and legal protections for LGBTQ seniors and seniors with HIV in long-term care facilities. The law amends the District of Columbia Act on the Aging and the Human Rights Act of 1977 to ensure that LGBTQ seniors and seniors with HIV are included in the interpretation of "greatest social need" for the purpose of allocating funds, and to establish a long-term care bill of rights for LGBTQ and HIV residents.

Under the amended District of Columbia Act on the Aging, the Department shall interpret the term "greatest social need," as defined in the federal Older Americans Act of 1965, to include LGBTQ seniors and seniors with HIV for the purpose of administering provisions related to funding. The Mayor is required to promulgate rules to carry out the purposes of this section within 210 days of the effective date of the law.

The law also amends the Human Rights Act of 1977 to add a new Part K, which addresses long-term care facilities. It provides definitions for terms such as caregiver, HIV, long-term care facility, resident, and resident's representative. It also prohibits long-term care facilities and staff from engaging in unlawful discriminatory practices based on actual or perceived sexual orientation, gender identity or expression, or HIV status. Specifically, it prohibits denial of admission, refusal to transfer or forcibly transferring a resident, discharge or eviction of a resident, denial of room-sharing requests, and discriminatory room assignments for transgender residents.

The purpose of the law is to ensure that LGBTQ seniors and seniors with HIV are afforded the same rights and protections as other residents in long-term care facilities in the District of Columbia, and to address discrimination and ensure equal treatment in accessing and receiving care in these facilities. The law recognizes the unique needs and challenges faced by LGBTQ seniors and seniors with HIV, and aims to promote their well-being and dignity in long-term care settings.

What is the enforcement mechanism for "the Care for Seniors Act"?

As part of the amendments to Part K. Long-Term Care Facilities in Washington D.C., DC Office of Human Rights (OHR) is enforcing the Act by requiring long term facilities to provide training to staff in long term care facilities. The training component now mandates that facilities take certain actions. These include:

1.       Training their staff on preventing discrimination based on sexual orientation or gender identity & expression when caring for LGBTQ seniors and seniors with HIV.

2.       Posting a notice of non-discrimination in a conspicuous location within the facility.

3.       Certifying to the Office of Human Rights (OHR) that their staff has completed the required training. The OHR may assess a fine of no more than $10,000 upon failure to file such report.

These requirements aim to ensure that staff in long-term care facilities are educated and aware of the importance of preventing discrimination against LGBTQ seniors and seniors with HIV. By posting a notice of non-discrimination and certifying completion of the training to OHR, facilities are held accountable for promoting an inclusive and respectful environment for all residents, regardless of their sexual orientation, gender identity, or health status.

Analysis of Pertinent Details in Part K: Long-Term Facilities

Definitions

·         Caregiver: an individual who provides medical or non-medical care to a resident of a long-term care facility.

·         HIV: the human immunodeficiency virus.

·         Long-term care facility: has the same meaning as provided in section 101(7) of the District of Columbia Long-Term Care Ombudsman Program Act of 1988.

·         Resident: has the same meaning as provided in section 101(13) of the District of Columbia Long-Term Care Ombudsman Program Act of 1988.

·         Resident's representative: has the same meaning as provided in section 101(14) of the District of Columbia Long-Term Care Ombudsman Program Act of 1988.

·         Staff: an employee or contractor of a long-term care facility.

Prohibitions

 ·         Long-term care facilities or staff cannot discriminate against an individual based on their sexual orientation, gender identity or expression, or HIV status.

·         Prohibited actions include denying admission to a long-term care facility, refusing to transfer a resident to another facility, discharging or evicting a resident, denying a request to share a room with another resident, assigning or reassigning a transgender resident to a room that does not align with their gender identity or expression (unless requested by the resident), requiring personal identification documentation for restroom or facility access, refusing to use a resident's preferred name or pronouns, denying a resident the right to clothing, accessories, or grooming practices consistent with their gender identity or expression, denying or restricting a resident's right to privacy or free association, and denying or restricting access to medical or non-medical care that demeans the resident's dignity.

·         Staff not involved in direct care shall not be present during a resident's physical examination or personal care without express permission.

·         Long-term care facilities must use visual barriers to provide privacy when a resident is partially or fully unclothed.

·         Residents or their representatives have the right to refuse educational or informational examinations, observations, or treatments by staff, without diminishing access to care for diagnostic or treatment purposes.

·         Exceptions may apply based on professionally reasonable clinical judgment, with written documentation provided to the resident or their representative.

·         Compliance with applicable federal or District law is not excused or required by this section.

Personal Information

 ·         Residents have the option to provide information on their gender identity or expression, preferred name, and pronouns at the time of admission to a long-term care facility.

·         Long-term care facilities must protect personally identifiable information related to sexual orientation, gender identity or expression, transition history, and HIV status from unauthorized disclosure as required by federal or District law.

·         Reasonable steps must be taken to minimize inadvertent or incidental disclosure of this information to other residents, visitors, or staff, except as necessary for staff to perform their duties.

Notice

Long-term care facilities are required to prominently display a notice stating that discrimination, including harassment, based on actual or perceived sexual orientation, gender identity or expression, or HIV status, or based on association with an individual on these grounds, is not allowed. The notice must also include information about a resident's right to file a complaint for discrimination with the Office.

Training

·         Long-term care facility staff must receive training on preventing discrimination based on sexual orientation, gender identity or expression, or HIV at least once every 2 years, starting 60 days after the Office certifies a list of training providers.

·         The Act requires long-term care facilities to develop and implement training programs for all employees who provide direct care to residents, including nursing assistants, home health aides, and other personnel involved in providing care services. The Act sets forth the minimum training requirements that must be included in these programs, which certified trainers must be familiar with when delivering training sessions.

·         The Office of Human Rights is in the process of certification of trainers with the expectation that training will begin on May 1, 2023.

·         Long-term care facility is responsible for arranging and paying for the training.

·         The training must include definitions of common terms, best practices for communicating with LGBTQ seniors or seniors with HIV, information on health and social challenges faced by LGBTQ seniors and seniors with HIV, strategies for creating a safe and affirming environment, and best practices for communicating with friends, family members, or other visitors of LGBTQ seniors or seniors with HIV.

·         Long-term care facilities must file a report with the Office certifying that all employees have completed the required training every 2 years, starting 60 days after the Office certifies a list of training providers.

·         Failure to file the report may result in a fine of up to $10,000.

·         Revenue from the fine will be deposited into the LGBTQ Homeless Youth Training Grant Fund.

Time is of the essence! Here's what you need to do to comply with the Care for Seniors Act:

1.       Schedule mandatory training for all staff on the Care for Seniors Act with an OHR-certified trainer before OHR start enforcing the act, May 1, 2023.  

2.       Ensure that all staff members including managers and contractors receive appropriate training to understand and comply with the non-discrimination policies based on sexual orientation, gender identity or expression, or HIV status.

3.       Regularly review and update the training program to ensure ongoing compliance with the Care for Seniors Act.

4.       Revise resident policies and intake forms to align with the requirements of the Care for Seniors Act.

5.       Maintain records of staff training and documentation of compliance with the Act in case of Audits.

6.       Post a notice in conspicuous locations in the facility stating that discrimination, including harassment, based on actual or perceived sexual orientation, gender identity or expression, or HIV status, or association with an individual on account of their actual or perceived sexual orientation, gender identity or expression, or HIV status is not permitted.

7.       Include information in the notice about a resident's right to file a complaint for discrimination with the Office of Human Rights.

8.       Update Employment Handbook, and agreements with contractors to make the Care for Seniors Act training a condition of such agreements.

9.       Take corrective action, including additional training or disciplinary measures, for any staff members found to be in violation of the Act's requirements.

10.   Regularly monitor and assess compliance with the Care for Seniors Act through audits, reviews, and evaluations to ensure ongoing adherence to the Act's provisions.

11.   Filing a report with OHR upon completion of training is critical to ensure compliance.

How can G2Z Law assist you with this mandatory training?

 You can schedule this mandatory training with Maria-Fernanda Jackson, our Certified Training Consultant at G2Z Law Group. This training can be provided in English and Spanish. Contact her at mafe@g2zlaw.com or 202-656-8387 to coordinate this important training for your staff.

At G2Z Law Group, PLLC, our healthcare attorneys provides guidance to a wide range of clients regarding different aspects of healthcare law. Our healthcare attorneys represent a broad range of healthcare professionals and entities. The work that our healthcare attorneys perform touches a variety of legal areas including corporate, regulatory administrative, labor & employment, contracts, commercial, and bioethics and encompasses topics including, regulatory compliance, privacy, patient rights, and fraud and abuse.