Current through Reg. 49, No. 38; September 20, 2024
(a) The State Ombudsman and a representative
of the Office have:
(1) immediate, private,
and unimpeded access to enter an LTC facility, in accordance with the Older
Americans Act, §712(b)(1)(A) and 45 CFR §1324.11(e)(2)(i):
(A) at any time during a facility's regular
business hours or regular visiting hours; and
(B) 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;
(2)
immediate, private, and unimpeded access to a resident, in accordance with the
Older Americans Act, §712(b)(1)(A) and 45 CFR §1324.11(e)(2)(ii);
and
(3) access to the name and
contact information of a resident representative, if any, when the State
Ombudsman or representative of the Office determines the information is needed
to perform functions of the Ombudsman Program, in accordance with 45 CFR
§1324.11(e)(2)(iii).
(b) Disclosure of information by the State
Ombudsman or a representative of the Office related to any complaint, including
a description of the circumstances to be investigated, is subject to
requirements in the Ombudsman Policies and Procedures Manual related to
disclosure of confidential information.
(c) The State Ombudsman and a certified
ombudsman have immediate access:
(1) in
accordance with the Older Americans Act, §712(b)(1)(B) and 45 CFR
§1324.11(e)(2), to all medical, social, and other records relating to a
resident regardless of format, including an incident report involving the
resident, if:
(A) in accordance with 45 CFR
§1324.11(e)(2)(iv)(A) or (B), the State Ombudsman or certified ombudsman
has the informed consent of the resident or legally authorized
representative;
(B) in accordance
with the Older Americans Act, §712(b)(1)(B)(i)(II), the resident is unable
to communicate informed consent to access and has no legally authorized
representative; or
(C) in
accordance with 45 CFR §1324.11(e)(2)(iv)(C), such access is necessary to
investigate a complaint and the following occurs:
(i) the resident's legally authorized
representative refuses to give consent to access the medical, social, and other
records;
(ii) the State Ombudsman
or certified ombudsman has reasonable cause to believe that the legally
authorized representative is not acting in the best interests of the resident;
and
(iii) if it is the certified
ombudsman seeking access to the medical, social, and other records the
certified ombudsman obtains the approval of the State Ombudsman to access the
medical, social, and other records, without the legally authorized
representative's consent; and
(2) in accordance with 45 CFR
§1324.11(e)(2)(v), to the administrative records, policies, and documents
of an LTC facility to which the residents or general public have
access.
(d) In
accordance with 45 CFR §1324.11(e)(2), access by the State Ombudsman and a
certified ombudsman to a record, as described in subsection (c) of this
section, includes obtaining a copy of the record upon request.
(e) In accordance with the Ombudsman Policies
and Procedures Manual, a certified ombudsman must document one of the following
in the ombudsman database:
(1) whether a
resident who is able to communicate informed consent communicated informed
consent for the ombudsman to access a record described in subsection (c)(1) of
this section;
(2) whether the
legally authorized representative communicated informed consent to access a
record described in subsection (c)(1) of this section;
(3) whether the certified ombudsman has
authority to access a record described in subsection (c)(1) of this section
without consent because the resident is unable to communicate informed consent
and does not have a legally authorized representative; or
(4) whether the State Ombudsman has given
approval to access a record described in subsection (c)(1) of this section
accordance with subsection (c)(1)(C) of this section.
(f) The rules adopted under the Health
Insurance Portability and Accountability Act of 1996 (HIPAA), 45 CFR Part 160
and 45 CFR Part 164, subparts A and E, do not preclude an LTC 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 (a)(3) and (c) of this section are otherwise met.
The State Ombudsman and a certified ombudsman are each a "health oversight
agency" as that phrase is defined in 45 CFR §164.501.
