SECTION 340:105-11-243. Records, confidentiality, and disclosure

  The Office of the Long-Term Care Ombudsman (Office) manages the Office State Long-Term Care Ombudsman Program (Program) files, records, and information, in physical, electronic, or other formats including information maintained by Office representatives and local ombudsman entities pertaining to Program cases and activities. Such files, records, and information are the property of the Office. Office and area ombudsman staff, ombudsman volunteers, and designated agencies uphold policies listed in this Section.

(1)   No complaint, other confidential information, or records maintained by the Program may be disclosed unless the State Long-Term Care Ombudsman (Ombudsman) authorizes the disclosure.

(2)   The Ombudsman or ombudsman representative does not disclose the identity of any complainant or resident unless the complainant or resident, or his or her legal representative consents:

(A)   in writing to the disclosure and specifies to whom the identity may be disclosed;

(B)   verbally and the Ombudsman documents the consent at the time consent is given; or through the use of auxiliary aids and services communication of informed consent may be made:

(i)   in writing; or

(ii)   verbally or visually; and

(iii)   such consent must be documented contemporaneously by the Ombudsman or Office representative; or

(C)   a court orders the disclosure.

(3)   In accordance with federal law and regulation, the Ombudsman and Office representatives do not report suspected abuse, neglect, or exploitation of a resident when a resident has not communicated informed consent to such report. Except the Ombudsman or Office representative may refer confidential information and disclose resident-identifying information to the appropriate agency or agencies for regulatory oversight; protective services; access to administrative, legal, or other remedies; and/or law enforcement action when the circumstances in (4) of this Section are met.

(4)   When a resident is unable to communicate his or her informed consent to the Ombudsman or Office representative, the Office may rely on the resident's designated representative's consent, so long as the Ombudsman or Office representative does not have reasonable cause to believe the resident representative is not acting in the resident's best interests or is the alleged perpetrator of the abuse, neglect, or exploitation.

(5)   Inspection dates provided to the Program at any level, including Oklahoma State Department of Health inspections, are confidential per Section 1395i-3(g)(5)(B) of Title 42 of the United States Code (U.S.C.).

(A)   Inspection dates and dates of other unannounced visits to facilities, including visits for the purpose of complaint investigation, are not posted or otherwise revealed.

(B)   Federal law provides for a $2,000 penalty for release of inspection dates per 42 U. S. C. § 1395i-3(g)(2 (A) (1) and Section 488.307 of Title 42 of the Code of Federal Regulations.

(6)   Privacy is provided for complaint receipts by mail, phone, or personal interview to maintain confidentiality.

(7)   All mail addressed to an ombudsman by name or title is delivered to the ombudsman unopened.

(8)   Locked files are used to maintain confidential records. Access to such files is limited to designated area ombudsman representatives and Office staff.

[Source: Added at 9 Ok Reg 2431, eff 6-25-92; Amended at 19 Ok Reg 1170, eff 5-13-02; Amended at 34 Ok Reg 1624, eff 9-15-17]