Ombudsman Access Issues

From time to time, confusion arises as to the what level of access a Long Term Care Ombudsman has
in a long term care facility. Well meaning Ombudsman volunteers, as well as professional health care
and residential care providers, may be unaware of restrictions to this access. Both Ombudsman and care
providers, however, have a common purpose of providing excellent care to our seniors.

Several laws, including HIPAA (Public Law 104-191) and California's Confidentiality of Information Act
(Civil Code 56), restrict access to a patient's (resident's) medical information. Occasionally, an Ombudsman
will need access to this information in resolving a complaint. Guidelines allowing as well as limiting such
access can be found in California Law (Welfare and Institutions Code 9724) and California Regulations
(Title 22, Division 1.8, Chapter 6, Article 2).

Ombudsman access to records is limited in terms of:

• Purpose: The Ombudsman access to resident records is only for the purpose of "...hearing,
  investigating, and resolving complaints by, or on behalf of, and rendering advice to, elderly
  individuals who are patients or residents..." and
• Permission: The Ombudsman, prior to having access to a resident record, must have the
  permission of the resident or their Conservator, either in writing or orally in front of a third
  person witness (with very few exceptions).

Prior to allowing an Ombudsman access to a resident's records, Administrators should verify that

• the Ombudsman's access is for the purpose of investigating a specific complaint, 
• the Ombudsman has the required permission
• their Licensing Program Analyst is aware of any such complaint, and that an Ombudsman is
  investigating an alleged complaint.

If an Ombudsman is indeed investigating a complaint and has the required permission,
Administrators should be aware that interference with such an investigation carries a severe penalty
of up to $1,000 civil penalty assessment.

We will discuss this any many other issues at our upcoming conference in Maui, Hawaii, January 9 - 13, 2011.

In the interim, please contact us if you or your attorney need expert advice on this or other standard of care issues.

Bill Clawson, RN, PhD, CLNC (Certified Legal Nurse Consultant)