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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

June 21, 2023

A Pride Month Reminder: Are You Compliant?

Each June, the United States observes lesbian, gay, bisexual, transgender, and queer (LGBTQ+) Pride Month. Pride Month is a celebration of all the identities that make up the LGBTQ+ community and honors those that have fought and continue to fight for the expansion of LGBTQ+ rights. In addition to the many celebratory activities throughout the month, Pride Month is a great time for health care and human services providers to review their policies and procedures and consider whether they are LGBTQ+ affirming and compliant with applicable regulatory requirements.

Many New York State agencies have specific requirements that apply to providing services to the LGBTQ+ community. For example, the New York State Office for People With Developmental Disabilities (OPWDD) recently adopted a new regulatory requirement pertaining to gender identity and expression. Effective June 14, 2023, individuals receiving services in facilities and through programs operated, certified, or both by OPWDD are entitled to the right to express their gender identity and self-expression, both of which must be supported by providers offering services to this population to ensure that service recipients are being treated with dignity and respect.OPWDD’s new regulatory requirement is expanded upon in Administrative Memorandum # 2023-01, which sets out specific requirements related to recognizing individuals by their gender identity, respecting an individual’s sexual orientation, confidentiality, gender-segregated facilities, training for staff, and education for individuals receiving services.

Moreover, the New York State Office of Mental Health (OMH) has regulations that protect minors from so-called “conversion therapy” efforts. Under the regulations, facilities regulated by OMH are barred from providing services to minors that are intended to change a minor’s sexual orientation or gender identity, including behaviors, gender expression, or sexual or romantic feelings.ii Instead, only counseling or therapy related to gender transition that is accepting, supportive, and understanding and that does not seek to change a minor’s gender identity or sexual orientation is permitted. OMH’s Official Policy Manual, which sets out the agency’s statements related to the provision of mental health services for individuals receiving treatment at state-operated psychiatric facilities, also includes a robust policy on gender identity and expression, and OMH makes various resources on providing services to LGBTQ+ individuals available to providers on its website.

Notably, the New York State Office of Addiction Services and Supports (OASAS) has some of the most robust requirements pertaining to working with LGBTQ+ individuals. For example, the OASAS regulations specifically require providers to develop and implement policies and procedures to ensure that culturally appropriate and affirming services are provided to all patients, including sexual orientation, gender identity, and gender expression.iii Individuals receiving services in programs that are certified, funded, or authorized by OASAS also have the right to placement in gender-segregated settings based on their gender identity or gender expression, and the supervised collection of urine toxicology screens can only be conducted by persons of the same gender identity as the patient, based on patient preference.iv The provision of affirming care to LGBTQ+ clients is further expanded upon in OASAS’ Local Service Bulletin on Affirming Care for LGBTQ+ Clients, which requires providers to designate a LGBTQ+ liaison and to provide LGBTQ+ cultural competency training, among other requirements. Finally, OASAS providers that meet certain regulatory requirements may also seek a LGBTQ+ program endorsement from the agency.v  

Regardless of whether it is specifically required by your state oversight agency, the best way to ensure that you are providing supportive and affirming care and services to LGBTQ+ individuals is by creating a culture that is safe and reassuring for members of the LGBTQ+ community. This can be done by implementing strong policies and procedures that support and affirm the community. Supplementing these policies and procedures with comprehensive training and education is also critical to ensuring that providers are not only meeting their regulatory obligations but also creating an atmosphere that is safe and supportive for all. After all, ensuring that members of the LGBTQ+ community have access to affirming services is the best way to celebrate Pride Month.

Attorneys on Barclay Damon’s Health & Human Services Providers Team are available to assist with navigating these state agency requirements, including the provision of culturally competent health care services to the LGBTQ+ community.

If you have any questions about the content of this alert, please contact Dena DeFazio, associate, at ddefazio@barclaydamon.com, or another member of the firm’s Health & Human Services Providers Team. 
                                                          

iSee 14 NYCRR § 633.4(a)(4)(xxvii).
iiSee 14 NYCRR § 527.8(d).
iiiSee 14 NYCRR § 815.4(r).
ivSee 14 NYCRR §§ 815.5(a)(19), 815.8(a).
vSee 14 NYCRR § 830.6.

 

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