Current through Register Vol. 46, No. 39, September 25, 2024
(a) The
operator shall collect and maintain such information, records or reports as
determined by the department to be necessary.
(b) Operators of facilities subject to the
inspection and supervision of the department shall supply and provide access to
such information and records in such form and at such times as the department
shall determine.
(c) No
substitution for department forms may be made without prior written approval of
the department.
(d) The department
may request from any other State department or State or local agency, including
but not limited to the Department of Mental Hygiene, the Office of Children and
Family Services and the Board of Social Welfare, and such other department or
agency shall furnish such information as the department may require.
(e) Other State departments or State agencies
may request such information as such department or agency may require for the
proper discharge of its duties. Such departments and agencies shall safeguard
the confidentiality of such information, records and reports in the same manner
as the department.
(f)
Confidentiality.
(1) Officers,
employees or designees of the department shall maintain the confidentiality of
facts and information obtained as the result of submittal of any annual
financial report, any inspection or investigation of a facility.
(2) Operators shall maintain the
confidentiality of facts and information obtained and retained as part of
individual resident records.
(3) No
facts and information retained as part of individual resident records may be
released to anyone other than the resident, the operator, his employees or
agents, or an employee or designee of the department, without the written
permission of the resident.
(g)
Confidentiality of HIV- and
AIDS-related information.
(1) An
operator or employee must not require that an applicant for employment,
prospective resident, resident, volunteer or employee undergo an HIV-related
test.
(2) An operator or employee
must not require an applicant for employment, prospective resident, resident,
volunteer or employee to disclose confidential HIV-related
information.
(3)
Confidential HIV-related information means any information, in
the possession of a person who provides one or more health or social services
or who obtains the information pursuant to a release of confidential HIV
related information, concerning whether an individual has been the subject of
an HIV related test, or has HIV infection, HIV related illness or AIDS, or
information which identifies or reasonably could identify an individual as
having one or more of such conditions, including information pertaining to such
individual' contacts.
(4)
AIDS means acquired immune deficiency syndrome, as may be
defined from time to time by the centers for disease control of the United
States public health service.
(5)
HIV infection means infection with the human immunodeficiency
virus or any other related virus identified as a probable causative agent of
AIDS.
(6)
HIV related
illness means any illness that may result from or may be associated
with HIV infection.
(7)
HIV
related test means any laboratory test or series of tests for any
virus, antibody, antigen or etiologic agent whatsoever thought to cause or to
indicate the presence of AIDS.
(8)
There must be no discrimination based on handicap, as that term is defined in
section
303.7
of this Part, in determining admission, retention or employability; nor shall
there be any adverse action on that basis against an applicant for employment,
prospective resident, resident, employee or volunteer.
(9) Confidential HIV related information may
be disclosed by an operator or employee only in accordance with the procedures
set forth in this Part and only when appropriate services cannot be provided
without disclosure.
(10) Except as
specified in paragraphs (14) and (15) of this subdivision, an operator,
employee or volunteer who obtains confidential HIV related information
concerning any applicant for employment, prospective resident, resident,
employee or volunteer must not disclose that information without specific
written authorization to release that information from:
(i) the protected individual; or
(ii) a person authorized by law to consent to
health care for the individual.
(11) The authorization to release
confidential HIV-related information must:
(i) be dated;
(ii) specify to whom disclosure is
authorized;
(iii) specify the
purpose for the disclosure;
(iv)
specify the time period during which the release is effective;
(v) specify that the information to be
disclosed is confidential HIV information; and
(vi) be signed by the protected individual
or, if the individual lacks capacity to consent, a person authorized pursuant
to law to consent to health care for the individual.
(12) A general authorization for the release
of medical or other information cannot be used as an authorization to release
confidential HIV-related information.
(13) Whenever an operator or employee
discloses confidential HIV information, that person must:
(i) enter a dated and signed notation of
disclosure of HIV information in the protected individual' record;
and
(ii) within 10 days of the date
of disclosure if the disclosure is oral, and simultaneously when disclosure is
written, give a written statement to the person to whom the HIV information is
disclosed which states:
"This information has been disclosed to you from
confidential records which are protected by State law. State law prohibits you
from making any further disclosure of this information without the specific
written consent of the person to whom it pertains, or as otherwise permitted by
law. Any unauthorized further disclosure in violation of State law may result
in a fine or jail sentence or both. A general authorization for the release of
medical or other information is not sufficient authorization for further
disclosure."
(14)
Notwithstanding the requirements of this section, an operator may disclose
confidential HIV related information to a health care provider or health
facility when knowledge of the confidential HIV related information is
necessary to provide appropriate care or treatment to the protected individual.
No authorization for release of confidential HIV related information is
required for such disclosure. However, the operator must follow the disclosure
procedure specified in paragraph (13) of this subdivision.
(15) Notwithstanding the requirements of this
section, an operator is obligated to release confidential HIV related
information to authorized employees or agents of the department or social
services districts when such information is reasonably necessary to supervise,
monitor, or administer the facility and such employee or agent of the
department or social services districts would, in the ordinary course of
business have access to such records. Authorized employees and agents of the
department or social services districts may obtain confidential HIV related
information under this paragraph even though the adult care facility does not
obtain the release specified in paragraph (10) of this subdivision. In
addition, when information is released under this section by an adult care
facility, the facility is not required to give the statement specified in
paragraph (13) of this section to the employees or agents of the department or
social services district nor is the facility required to indicate in any
resident's record that the information was released.
