Title: Section 411.1 - Duty of the operator

411.1 Duty of the operator. The operator shall:

(a) ensure that long-term care ombudsmen who are duly certified and designated by the State Office for the Aging pursuant to section two hundred eighteen of the elder law shall have access to a residential health care facility without restriction, and shall prohibit interference with ombudsmen when they are performing their official duties and retaliation or reprisal against any resident, employee or other person, who has filed a complaint with, or provided information to, such ombudsmen;

(b) ensure privacy and confidentiality in such visits with the residents by duly authorized ombudsmen;

(c) ensure that ombudsmen shall have access to medical and personal records, subject to the following provisions and exceptions:

(1) access by an ombudsman must be provided when:

(i) the resident or the resident representative, as defined in paragraph (f) of subdivision 1 of section 218 of the elder law, has provided informed consent in writing or through the use of auxiliary aids or services;

(ii) the resident or resident representative communicates informed consent orally, visually, or through the use of auxiliary aids and services, and such consent is documented contemporaneously by an ombudsman; or

(iii) access is necessary in order to investigate a complaint, the resident representative refuses to consent to the access, an ombudsman has reasonable cause to believe that the resident representative is not acting in the best interests of the resident, and the ombudsman obtains the approval of the state long-term care ombudsman.

(2) periods of access shall include normal business hours, and may include other times mutually acceptable to the ombudsmen and the facility by appointment;

(3) one or more members of the facility's staff shall be available to arrange for inspection, interpretation, and, for a reasonable fee, to photocopy such records; and

(4) a physician's personal notes, which shall mean the physician's speculations, reminders, impressions other than diagnostic impressions, and other information unrelated to treatment decisions, may be excluded from disclosure.

(d) ensure that residents, employees or other person(s) may file complaints with or provide information to any long term care ombudsman as specified in subdivision (a) of this section.