(a) A resident has the right to have access to, and the facility must provide immediate access to a resident to, the following:
  (1) in Medicaid-certified facilities, any representative of the Secretary of Health and Human Services;
  (2) any representative of the State of Texas;
  (3) the resident's individual physician;
  (4) the State Ombudsman;
  (5) a certified ombudsman;
  (6) any representative of the protection and advocacy system for individuals with intellectual or developmental disabilities established under the Developmental Disabilities Assistance and Bill of Rights Act, 42 USC Chapter 144, Subchapter I, Part C;
  (7) any representative of the protection and advocacy system for individuals with mental illness established under the Protection and Advocacy for Mentally Ill Individuals Act, 42 USC Chapter 114, Subchapter I;
  (8) subject to the resident's right to deny or withdraw consent at any time, immediate family or other relatives of the resident;
  (9) subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time, others who are visiting with the consent of the resident; and
  (10) the resident representative.
(b) A facility must provide reasonable access to a resident by any entity or individual that provides health, social, legal, or other services to the resident, subject to the resident's right to deny or withdraw consent at any time.
(c) In accordance with the Older Americans Act, §712(b)(1)(A) and 45 CFR §1324.11(e)(2), a facility must allow:
  (1) the State Ombudsman, a certified ombudsman, and an ombudsman intern to have:
    (A) immediate, private, and unimpeded access to enter the facility at any time during the facility's regular business hours or regular visiting hours;
    (B) immediate, private, and unimpeded access to a resident; and
    (C) immediate and unimpeded access to the name and contact information of a resident representative if the State Ombudsman, a certified ombudsman, or an ombudsman intern determines the information is needed to perform a function of the Ombudsman Program; and
  (2) the State Ombudsman and a certified ombudsman to have immediate, private, and unimpeded access to enter the facility at a time other than regular business hours or visiting hours, if the State Ombudsman or a certified ombudsman determines access may be required by the circumstances to be investigated.
(d) A facility, in accordance with the Older American Act, §712(b)(1)(B) and 45 CFR §1324.11(e)(2), must allow the State Ombudsman and a certified ombudsman immediate access to:
  (1) all files, records, and other information concerning a resident, including an incident report involving the resident, if:
    (A) the State Ombudsman or certified ombudsman has the consent of the resident or resident representative;
    (B) the resident is unable to communicate consent to access and has no resident representative; or
    (C) such access is necessary to investigate a complaint and the following occurs:
      (i) the resident representative refuses to give consent to access to the records, files and other information;
      (ii) the State Ombudsman or certified ombudsman has reasonable cause to believe that the resident representative is not acting in the best interest of the resident; and
      (iii) if it is a certified ombudsman seeking access to the records, files, or other information, the certified ombudsman obtains the approval of the State Ombudsman to access the records, files, or other information without the resident representative's consent; and
  (2) the administrative records, policies, and documents of the facility to which the residents or general public have access.
(e) The rules adopted under the Health Insurance Portability and Accountability Act of 1996, 45 CFR Part 164, Subparts A and E, do not preclude a facility from releasing protected health information or other identifying information regarding a resident to the State Ombudsman or a certified ombudsman if the requirements of subsections (c)(1)(C) and (d)(1)(A), (B), or (C) of this section are met. The State Ombudsman and a certified ombudsman are each a "health oversight agency" as that phrase is defined in 45 CFR §164.501.

Source Note: The provisions of this §554.413 adopted to be effective May 1, 1995, 20 TexReg 2393; amended to be effective September 1, 2008, 33 TexReg 7280; amended to be effective April 5, 2018, 43 TexReg 2017; amended to be effective March 24, 2020, 45 TexReg 2025; transferred effective January 15, 2021, as published in the Texas Register December 11, 2020, 45 TexReg 8871