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January 23, 2023

New NYS Laws Address LGBTQIA+ Health Care Disparities

On December 23, 2022, NYS Governor Hochul signed a legislative package designed to address health care disparities in the lesbian, gay, bisexual, transgender, queer, intersex, and asexual (LGBTQIA+) community into law. The package included two bills that are intended to expand protections in health care settings for individuals who identify as LGBTQIA+.

Runaway or Homeless Youth Health Care Decision-Making

The first bill amends the New York State Public Health Law regarding minors’ ability to consent to health care services. Beginning on March 23, 2023, runaway and homeless youth under 18 years old will be able to consent to their medical, dental, health, and hospital care. In addition to runaway and homeless youth, the new law also applies to youth receiving services at an approved runaway and homeless youth crisis services program or a transitional independent living support program.

In order to consent to their own health care services, the youth will be required to either meet the statutory definitions of runaway or homeless youth found in New York State law or receive services at an approved runaway and homeless youth crisis services program or a transitional independent living support program. Specifically, a minor is considered a “runaway youth” if the individual is under 18 years old and is absent from their legal residence without the consent of their parent, legal guardian, or custodian.Moreover, a “homeless youth” is a person under 18 years old who is in need of services and is without a place of shelter where supervision and care are available.ii  “Runaway and homeless youth crisis services programs” and “transitional independent living support programs” are both programs (including both residential and nonresidential programs) certified by the New York State Office of Children and Family Services (OCFS) to provide services to runaway and homeless youth.iii

Prior to the enactment of this new law, those under 18 years old, in most cases, may only consent to medical, dental, health, and hospital care if they are married, have a child, or are pregnant; in most other cases, the consent of a parent or guardian was required.iv  Acknowledging the barrier to accessing health care the previous laws created for minors who are homeless or who have run away from their homes, the new law is intended to allow youth—including LGBTQIA+ youth who are disproportionately represented in the runaway and homeless youth populations—to access necessary health care without parental consent. In fact, LGBTQIA+ youth make up over 40 percent of runaway and homeless youth. By authorizing these youth to give consent, timely care can be provided and harmful effects resulting from delayed, or even denied care, can be avoided.

Required Training Program for Certain Caregivers

The second bill will require home health aides, personal care aides, personal care staff, and certified nurse’s aides to receive training focused on working with patients of diverse sexual orientations and gender identities or expressions. The training program unit is to be developed by the commissioners of health and education and will be part of the state approved education or training programs required for home health aide, personal care aide, personal care staff, and certified nurse’s aides certification. The legislation sets forth a list of 11 components that must be included in the training program, including the explanation of various terms, an understanding of why patients with diverse sexual orientations and gender identities or expressions may hide their identities, how to incorporate concerns of patients with diverse sexual orientations and gender identities or expressions into person-directed care, and the unique needs of these patients, among others. Specific information designed for staff working in nursing care or other residential care settings will also be required.

The training is to be developed within six months of the law’s effective date—June 23, 2023—and, at that time, will be a required component for certification and recertification of home health aides, personal care aides, personal care staff, and certified nurse’s aides. The law’s intent is to remedy reports received from LGBTQIA+ patients of refusal of care and difficulty finding health care where they feel included and accepted and to ensure that LGBTQIA+ patients receive culturally competent care. 

Attorneys on Barclay Damon’s Health & Human Services Providers Team are available to assist with navigating these new legal requirements, including the provision of culturally competent health care services to the LGBTQIA+ community, and will continue to monitor any developments and best practices.

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

                                                     

iSee N.Y. EXEC. LAW § 532-a(1).
iiSee N.Y. EXEC. LAW § 532-a(2)(a).
iiiSee N.Y. EXEC. LAW § 532-a(4)(a) – (b), (6)(a) – (b).
ivSee N.Y. PUB. HEALTH LAW § 2504.
 

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