(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.
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Source Note: The provisions of this §554.413 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective September 1, 2008, 33 TexReg 7280; amended to be effective April 5, 2018, 43 TexReg 2017; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871 |