| (a) A resident has the right to be visited by the State
Ombudsman, a certified ombudsman, or an ombudsman intern.
(b) In accordance with 42 United States Code (U.S.
Code) §3058g (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 the resident's legally authorized 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.
(c) A facility, in accordance with 42 U.S. Code §3058g
(b)(1)(B) and 45 CFR §1324.11(e)(2), must allow the State Ombudsman
and a certified ombudsman to have 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 legally authorized representative;
(B) the resident is unable to communicate consent to
access and has no legally authorized representative; or
(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 to the records, files, and other
information;
(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 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 legally authorized representative's
consent; and
(2) the administrative records, policies, and documents
of the facility to which the residents or general public have access.
(d) 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
(b)(1)(C) and (c)(1) 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.
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