46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO LONG-TERM CARE; AMENDING SECTIONS OF THE LONG-TERM CARE OMBUDSMAN ACT PERTAINING TO ACCESS TO RECORDS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 28-17-13 NMSA 1978 (being Laws 1989, Chapter 208, Section 13, as amended) is amended to read:

"28-17-13. ACCESS TO RECORDS OF PATIENTS, RESIDENTS OR CLIENTS.--

A. In order for the office to carry out its responsibilities, including conducting investigations, under the Long-Term Care Ombudsman Act, the office shall have access to the medical, [and] personal and financial and other nonmedical records of a patient, resident or client of a long-term care facility that are retained by the facility or the facility's parent corporation or owner. If the patient, resident or client:

(1) has the ability to consent in writing, access may only be obtained by the written consent of the patient, resident or client;

(2) is unable to consent in writing, oral consent may be given in the presence of a third party as witness;

(3) has a legally appointed surrogate decision maker authorized to approve review of records, the office shall obtain the permission of the surrogate decision maker for review of the records, unless any of the following apply:

(a) the existence of the surrogate decision maker is unknown to the office or the facility;

(b) the surrogate decision maker cannot be reached within five working days; [or]

(c) access to the records is necessary to identify, investigate or evaluate a complaint; [and] or

(d) the surrogate decision maker refuses to give the permission and a representative of the office has reasonable cause to believe that the surrogate decision maker is not following the wishes of the resident; and

(4) is unable to express written or oral consent and there is no surrogate decision maker or the notification of the surrogate decision maker is not applicable for reasons set forth in Paragraph (3) of this subsection or the patient, resident or client is deceased, inspection of records may be made by employees of the office, ombudsman coordinators and by ombudsmen approved by the ombudsman coordinator or the state ombudsman.

B. The office shall also have full and immediate access to any administrative records, policies, procedures or documents that concern, involve or pertain to a resident's diet, comfort, health, safety or welfare.

[B.] C. Copies of records may be reproduced by the office. If investigation of records is sought pursuant to this section, the ombudsman shall upon request produce a statement signed by the ombudsman coordinator or state ombudsman authorizing the ombudsman to review the records. Facilities providing copies of records pursuant to this section may charge the office for the actual copying cost for each page copied.

[C.] D. Upon request by the office, a long-term care facility shall provide to the office the name, address and telephone number of the guardian, conservator, attorney-in-fact, legal representative or next-of-kin of any patient, resident or client and a copy of any document granting legal decision-making power over a resident.

[D.] E. The long-term care facility and personnel who disclose records pursuant to this section shall not be liable for the disclosure.

[E.] F. The office shall establish procedures to protect the confidentiality of records obtained pursuant to this section."

Section 2. Section 28-17-14 NMSA 1978 (being Laws 1989, Chapter 208, Section 14, as amended) is amended to read:

"28-17-14. CONFIDENTIALITY OF INFORMATION.--

A. The files and records of the office may be disclosed only for purposes of fulfilling the duties of the office [of the ombudsman] pursuant to Subsection C of Section 28-17-4 NMSA 1978 at the discretion of the state ombudsman or [person designated by him] the state ombudsman's designee. All state ombudsman files and records pertaining to clients, patients and residents are confidential and not subject to the provisions of the Inspection of Public Records Act. The state ombudsman shall not disclose the identity of any complainant, [or] resident, client or patient about whom the office maintains files or records unless:

(1) the complainant, [or] resident, client or patient or [his] the legal representative of that person consents in writing to the disclosure;

(2) the complainant, [or] resident, client or patient gives oral consent that is documented immediately in writing by a representative of the office;

(3) disclosure is necessary for the provision of ombudsman services to the patient, resident or client and the patient, resident or client is unable to express written or oral consent; or

(4) disclosure is ordered by the court.

B. The director shall have access to the records and files of the office to verify the effectiveness and quality of the [ombudsman] program where the identity of any complainant, witness, patient, resident or client is not disclosed."