New Jersey LGBTQI & HIV+ Long Term Care Residents Bill of Rights: Are You Compliant?

The New Jersey Legislature joined a handful of states, including Illinois, California and Massachusetts,[1] in enacting statutory protections and rights for LGBTQI and HIV+ residents of long term care facilities with the passage of a LGBTQI and HIV+ long term care residents “Bill of Rights” in August 2021.[2] The New Jersey LGBTQI & HIV+ long term care residents Bill of Rights establishes a robust set of requirements concerning the rights of residents of long term care facilities who identify as lesbian, gay, bisexual, transgender, undesignated/non-binary, questioning, queer, or intersex (LGBTQI), together with the prohibition of long term care facility and long term care facility staff from taking a broad list of discriminatory acts based on a person’s actual or perceived sexual orientation, gender identity, gender expression, intersex status, or human immunodeficiency virus (HIV) status.[3] The New Jersey Bill of Rights is an impactful advancement of social justice and equity for LGBTQI and HIV+ individuals in long term care facilities, who may experience greater cultural or social isolation and other challenges in connection with their sexual orientation, gender identity, gender expression, or HIV+ status.  Importantly for long term care operators and investors alike, the Bill of Rights establishes additional compliance and training measures, as well as additional risks of the incurrence of civil penalties for failure to comply with the strict provisions of the Bill of Rights.[4]

The New Jersey LGBTQI & HIV+ long term care residents Bill of Rights provides three general rights and corresponding compliance obligations upon long term care facilities and their staff:

1. A prohibition against a comprehensive list of discriminatory acts based on a person’s actual or perceived sexual orientation, gender identity, gender expression, intersex status, or HIV status (referred to herein as the “Anti-Discrimination Rule”);[5]

2. A requirement that all resident records, including records generated at the time of admission, include the resident’s gender identity and the resident’s chosen name and pronouns, as indicated by the resident (referred to herein as the “Records Rule”);[6] and

3. A prohibition against disclosure of any personal identifying information regarding a resident’s sexual orientation, transgender or undesignated/non-binary status, gender transition status, intersex status or HIV status to the extent not otherwise required by federal or state law, together with a requirement to obtain a resident’s informed consent to the presence, observation or examination of a resident by long term care facility staff not directly involved in providing direct care to a resident and the implementation and use of adequate doors, curtains, screens, or other effective visual barriers to provide bodily privacy for all residents (referred to herein as the “Privacy Rule”).[7]

As defined in the Bill of Rights, the categories of “long term care facilities” subject to its terms include any nursing home, assisted living residence, comprehensive personal care home, residential healthcare facility, or licensed dementia care home.  Long term care facility staff subject to the rules of the Bill of Rights include all individuals employed by, or contracted directly with, a long term care facility. [8]

In addition to the three general rights and compliance obligations encompassed by the Anti-Discrimination Rule, the Records Rule and the Privacy Rule, long term care facility operators are further subject to a fourth compliance obligation: ensuring that administrators and staff receive training at least once every other year, provided by a training organization approved by the New Jersey Department of Health that has demonstrated an expertise in identifying and creating safe and affirming environments for the medical challenges faced by LGBTQI seniors and seniors living with HIV in long term care facilities (referred to herein as the “Training Rule”). The Training Rule further requires each long term care facility to designate two employees — one representing management at the facility and one representing direct care staff at the facility — to receive in-person training on or before February 28, 2022, and to serve as points of contact for the facility regarding compliance with the LGBTQI and HIV+ long term care residents Bill of Rights.[9]

Anti-Discrimination Rule

The Anti-Discrimination Rule of the LGBTQI and HIV+ long term care residents Bill of Rights broadly prohibits long term care facilities and long term care facility staff from any of the following based in whole or in part on a person’s actual or perceived LGBTQI orientation, identity, expression or status, or HIV status:

• Denying admission to a long term care facility;
• Transferring or refusing to transfer a resident within a facility or to another facility;
• Discharging or evicting a resident from a facility;
• Denying a request by residents to share a room;
• Assigning, reassigning, or refusing to assign a room to a transgender or non-binary resident other than in accordance with their gender identity (other than pursuant to the transgender or non-binary resident’s request to the contrary) where rooms are assigned by gender when practicable and when both residents consent to the arrangement;[10]
• Prohibiting a resident from using or harassing[11] a resident who uses or seeks to use a restroom available to other persons of the same gender identity;
• Repeatedly failing to use a resident’s chosen name or pronouns after being clearly informed of the chosen name or pronouns;
• Denying a resident the right to wear or be dressed in clothing, accessories, or cosmetics or to engage in grooming practices that are permitted to any other resident;
• Restricting a resident’s right to associate with other residents or with visitors, including the right to consensual sexual relations;
• Denying or restricting medical or nonmedical care that is appropriate to a resident’s organs and bodily needs;
• Providing medical or nonmedical care that, to a similarly situated, reasonable person, unduly demeans the resident’s dignity or causes avoidable discomfort; or
• Refusing or willfully failing to provide any service, care, or reasonable accommodation to a resident or an applicant for services or care.

The requirements of the Bill of Rights, however, are inapplicable to the extent that compliance with its terms is incompatible with professionally reasonable clinical judgment.

Moreover, each facility must post a notice alongside its current nondiscrimination policy and other written materials providing notice of resident rights required by New Jersey regulations that:

“[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, intersex status, 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, intersex status, or HIV status. You may file a complaint with the Office of the State Long-Term Care Ombudsman, [provide current contact information], if you believe you have experienced this kind of discrimination.”[12]

Long term care facility operators in New Jersey must ensure their employee handbooks, policies and procedures, and other compliance manuals are updated to address employees’ responsibilities to understand and adhere to the above rights afforded LGBTQI and HIV+ residents and corresponding rules prohibiting facility staff from engaging in any of the discriminatory conduct prohibited under the Anti-Discrimination Rule.

Records Rule 

As noted above, the Records Rule requires each long term care facility to include the resident’s gender identity and chosen name and pronouns in all resident admission and other records as indicated by the resident or their legal representative. Long term care facility operators should ensure their electronic records systems are adequately updated to require designation of a resident’s gender identity, preferred name, and pronouns in all resident intake and admissions forms, and should similarly update their resident admission packet forms to request each resident provide their gender identity, preferred name and pronouns in writing in the admissions form, as well as represent and promise their responses designated in the resident admissions agreement are true and correct and may be relied upon by the facility operator until the resident informs the facility in writing of a change in their gender identity or preferred name or pronouns. Residents and their legal representatives should also be expressly permitted the option to not designate their preferred name and pronouns or gender identity in such forms if they so choose.

Privacy Rule

In addition to the general rules comprising the Privacy Rule described above, the rule further requires that transgender residents shall be provided access to transition-related assessments, therapy, and treatments as recommended by their healthcare provider, including transgender-related medical care, hormone therapy, and supportive counseling.[13] Long term care facility operators must revisit their healthcare and data privacy compliance protocols to ensure their information security measures restrict access to information regarding a resident’s sexual orientation, transgender or undesignated/non-binary status, gender transition status, intersex status, or HIV status to only disclosure required by applicable state or federal law and to the minimum extent necessary for facility staff to perform their duties. Additionally, facility operators with LGBTQI residents should engage with healthcare providers specializing in LGBTQI and gender-affirming and transgender-related care to provide transition-related assessment and treatment of such residents upon request.

Training Rule

The Training Rule specifically requires that long term care facility administrators and staff receive training on at least a biennial basis that addresses and discusses caring for LGBTQI seniors and seniors living with HIV and preventing discrimination based on sexual orientation, gender identity or expression, intersex status, and HIV status, including an overview of the provisions of the Bill of Rights. The two points of contact for the facility — one representing management and the other representing direct care staff — must develop a general training plan for the facility, in addition to attending an in-person training before February 28, 2022. All other long term care facility staff are required to complete the training required pursuant to the Training Rule within one year of their date of hire. 

Long term care facility operators would be wise to incorporate the training required under the LGBTQI & HIV+ long term care residents Bill of Rights with their existing employee training programs and ensure facility administrators and staff are keeping up-to-date with their biennial training requirements.

Penalties for Violation

A violation of the New Jersey LGBTQI & HIV+ long term care residents Bill of Rights by a long term care facility or its staff may result in civil penalties or other administrative action imposed by the New Jersey Department of Health.[14] Residents may report an alleged violation by filing a complaint with the Office of the State Long-Term Care Ombudsman. Further, a violation of the Bill of Rights may serve as the basis of a negligence per se action by a LGBTQI or HIV+ resident who has otherwise been harmed in connection with the alleged violation.

Industry Impact

The enactment of the New Jersey LGBTQI & HIV+ long term care residents Bill of Rights is a meaningful legislative win for LGBTQI and HIV+ seniors living in long term care facilities and their allies. Long term care facility operators and investors should each evaluate the existing training programs and compliance policies in place at the New Jersey facilities within their portfolios to ensure they are incorporating the requirements of the LGBTQI & HIV+ long term care residents Bill of Rights. Investors especially eyeing transactions involving New Jersey long term care facilities should pay close attention to the facility’s existing compliance programs in their due diligence efforts, and be sure the facility operator and administrator are adequately informed of the requirements of the Bill of Rights and implementing and monitoring compliance with those requirements.

[1] See 210 ILCS 9/97; 20 ILCS 105/3.11; S.B. 381, 193^rd Gen. Ct., at No. 2235 (Mass. 2023); H.B. 637, 193^rd Gen. Ct., at No. 3515 (Mass. 2023); Cal. HEALTH & SAFETY CODE §§ 1569.318; 1439.50, et seq.

[2] N.J.S.A. 26:2H-12.101, et seq.

[3] N.J.S.A. 26:2H-12-102.

[4] N.J.S.A. 26:2H-12.105.

[5] N.J.S.A. 26:2H-12.102.

[6] N.J.S.A. 26:2H-12.103.

[7] N.J.S.A. 26:2H-12.104.

[8] N.J.S.A. 26:2H-12.101.

[9] N.J.S.A. 26:2H-12.106.

[10] See 42 C.F.R. § 483.10(e)(5).

[11] “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.  See N.J.S.A. 26:2H-12_1.02(4).

[12] N.J.S.A. 26:2H-12.102.

[13] N.J.S.A. 26:2H-12.104(d).

[14] N.J.S.A. 26:2H-12-105.