Current through Reg. 49, No. 38; September 20, 2024
(a) A
resident has the right to have access to, and the facility must provide
immediate access to a resident to, the following:
(1) in Medicaid-certified facilities, any
representative of the Secretary of Health and Human Services;
(2) any representative of the State of
Texas;
(3) the resident's
individual physician;
(4) the State
Ombudsman;
(5) a certified
ombudsman;
(6) any representative
of the protection and advocacy system for individuals with intellectual or
developmental disabilities established under the Developmental Disabilities
Assistance and Bill of Rights Act, 42 USC Chapter 144, Subchapter I, Part
C;
(7) any representative of the
protection and advocacy system for individuals with mental illness established
under the Protection and Advocacy for Mentally Ill Individuals Act, 42 USC
Chapter 114, Subchapter I;
(8)
subject to the resident's right to deny or withdraw consent at any time,
immediate family or other relatives of the resident;
(9) subject to reasonable restrictions and
the resident's right to deny or withdraw consent at any time, others who are
visiting with the consent of the resident; and
(10) the resident representative.
(b) A facility must provide
reasonable access to a resident by any entity or individual that provides
health, social, legal, or other services to the resident, subject to the
resident's right to deny or withdraw consent at any time.
(c) In accordance with the Older Americans
Act, §712(b)(1)(A) and
45
CFR §
1324.11(e)(2), a
facility must allow:
(1) the State Ombudsman,
a certified ombudsman, and an ombudsman intern to have:
(A) immediate, private, and unimpeded access
to enter the facility at any time during the facility's regular business hours
or regular visiting hours;
(B)
immediate, private, and unimpeded access to a resident; and
(C) immediate and unimpeded access to the
name and contact information of a resident representative if the State
Ombudsman, a certified ombudsman, or an ombudsman intern determines the
information is needed to perform a function of the Ombudsman Program;
and
(2) the State
Ombudsman and a certified ombudsman to have immediate, private, and unimpeded
access to enter the facility at a time other than regular business hours or
visiting hours, if the State Ombudsman or a certified ombudsman determines
access may be required by the circumstances to be investigated.
(d) A facility, in accordance with
the Older American Act, §712(b)(1)(B) and
45
CFR §
1324.11(e)(2),
must allow the State Ombudsman and a certified ombudsman immediate access to:
(1) all files, records, and other information
concerning a resident, including an incident report involving the resident, if:
(A) the State Ombudsman or certified
ombudsman has the consent of the resident or resident representative;
(B) the resident is unable to communicate
consent to access and has no resident representative; or
(C) such access is necessary to investigate a
complaint and the following occurs:
(i) the
resident representative refuses to give consent to access to the records, files
and other information;
(ii) the
State Ombudsman or certified ombudsman has reasonable cause to believe that the
resident representative is not acting in the best interest of the resident;
and
(iii) if it is a certified
ombudsman seeking access to the records, files, or other information, the
certified ombudsman obtains the approval of the State Ombudsman to access the
records, files, or other information without the resident representative's
consent; and
(2) the administrative records, policies, and
documents of the facility to which the residents or general public have
access.
(e) The rules
adopted under the Health Insurance Portability and Accountability Act of 1996,
45 CFR Part 164, Subparts A and E, do not preclude a facility from releasing
protected health information or other identifying information regarding a
resident to the State Ombudsman or a certified ombudsman if the requirements of
subsections (c)(1)(C) and (d)(1)(A), (B), or (C) of this section are met. The
State Ombudsman and a certified ombudsman are each a "health oversight agency"
as that phrase is defined in
45
CFR §
164.501.
