Section 270.120  Access to Resident Records

a)         When a resident is incapable of giving to the ombudsman informed consent for access to the resident's records (such resident is hereinafter referred to as an "incapable resident"), the State Long Term Care Ombudsman, the Sub-State Ombudsman or other duly designated representative of the State Long Term Care Ombudsman Office shall have access to such incapable resident's clinical and other records under the following circumstances:

1)         the State Long Term Care Ombudsman, Sub-State Ombudsman or other duly designated representative has had a face-to-face visit with such resident and has personally determined that the resident was incapable of making and communicating an informed consent or denial for access to the resident's records by the ombudsman; and

2)         the State Long Term Care Ombudsman, Sub-State Ombudsman or other duly designated representative has determined the following:

A)        Either:

i)          the resident has no agent, court-appointed guardian or legal representative who is empowered to make such a decision regarding the resident's records; or

ii)         the agent, court-appointed guardian or legal representative is implicated in the complaint; or is not acting in the best interest of the resident; or could not be located within 24 hours despite a reasonable effort by the ombudsman to do so; and

B)        A review of such records is necessary to investigate or resolve a complaint or protect the rights of the incapable resident.

b)         The State Long Term Care Ombudsman, Sub-State Ombudsman or other duly designated representative shall present a written request to the facility for such resident's records.  Upon receipt of the request, the facility must allow immediate access to the resident's records by the State Long Term Care Ombudsman, the Sub-State Ombudsman or other duly designated representative of the State Long Term Care Ombudsman Office.

c)         Should the Sub-State Ombudsman or duly designated representative be denied access to a resident's records, the ombudsman will report this fact to the Office of the State Long Term Care Ombudsman.