2023 New Mexico Statutes › Chapter 28 - Human Rights › Article 17 - Long-Term Care Ombudsman › Section 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 full and immediate access to readily available medical, personal, financial and other nonmedical records, which include administrative records, policies, procedures or documents that concern, involve or pertain to a resident's diet, comfort, health, safety or welfare, but do not include internal quality assurance and risk management reports, 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 records are not readily available, they are to be provided to the office within twenty-four hours of the request. 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;
(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;
(c) access to the records is necessary to investigate or evaluate a complaint; 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. 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. 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. The long-term care facility and personnel who disclose records pursuant to this section shall not be liable for the disclosure.
E. In order to carry out its responsibilities as a health oversight agency, the office shall establish procedures to protect the confidentiality of records obtained pursuant to this section and in accordance with the federal Health Insurance Portability and Accountability Act of 1996 regulations.
History:
Laws 1989, ch. 208, § 13; 1997, ch. 257, § 7; 2003, ch. 109, § 1; 2017, ch. 81, § 4.
ANNOTATIONS
Cross references.
— For the federal Health Insurance Portability and Accountability Act of 1996,
see
42 U.S.C. 300gg et seq.
The 2017 amendment,
effective June 16, 2017, removed the requirement for third-party witnessing when residents of long-term care facilities orally consent to release of medical, personal, financial and other nonmedical records for office of the state long-term care ombudsman investigations; in Subsection A, Paragraph A(2), after "consent may be given", deleted "in the presence of a third party as witness", and changed "decision maker" to "decision-maker" throughout the paragraph.
The 2003 amendment,
effective June 20, 2003, rewrote Subsection A; inserted "or evaluate" in Subparagraph A(3)(c); added the Subparagraph A(3)(d) designation; in Subsection E, added "In order to carry out its responsibilities as a health oversight agency, the" at the beginning, and added "and in accordance with the federal Health Insurance Portability and Accountability Act of 1996 regulations" at the end.
The 1997 amendment,
effective July 1, 1997, substituted "surrogate decision maker" for "guardian or conservator" and "guardianship or conservatorship" throughout the section; substituted "residents" for "resident" in the section heading; substituted "has a legally appointed surrogate decision maker authorized" for "is under New Mexico guardianship or conservatorship that provides the guardian or conservator with the authority" in Paragraph A(3); added Subparagraph A(3)(c); inserted "of records" near the beginning of Subsection B; and added the language beginning "and a copy" at the end of Subsection C.