| (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.
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