218 R.I. Code R. 218-RICR-40-00-1.5

Current through December 3, 2024

Section 218-RICR-40-00-1.5 - Confidentiality, Retaliation, Immunity, Inspections, and Penalties

1.5.1Access

A. In the course of an investigation, the ombudsperson shall, personally or through designated employees of the Office:

1. Make the necessary inquiries and obtain information as is deemed necessary;

2. Have access to facilities and residents; and

3. Enter facilities and, after notifying the individual in charge, inspect any books, files, medical records, or other records that pertain to the resident, subject to the following requirements.

a. access to review the medical and social records of a resident shall be provided, if-

(1) the representative has the permission of the resident, or the legal representative of the resident; or

(2) the resident is unable to consent to the review and has no legal representative;

b. access to the records as is necessary to investigate a complaint shall be provided if-

(1) a legal guardian of the resident refuses to give the permission;

(2) a representative of the Office has reasonable cause to believe that the guardian is not acting in the best interests of the resident; and

(3) the representative obtains the approval of the Ombudsperson;

c. access shall be provided to the administrative records, policies, and documents, to which the residents have, or the general public has access, of long term care facilities; and

d. access to and, on request, copies of all licensing and certification records maintained by the State with respect to long term care facilities.

B. In the ordinary course of the ombudsperson's duties, the ombudsperson and designated employees of the Office shall have access to residents of a facility to:

1. Visit, talk with, make personal, social, and other appropriate services available;

2. Inform them of their rights and entitlements and corresponding obligations under federal and state law by distribution of educational materials, discussion in groups, or discussion with individual residents and their families; and

3. Engage in other methods of assisting, advising, and representing residents to extend to them the full enjoyment of their rights.

1.5.2Confidentially-Disclosure

A. In general, the files maintained by the Office are confidential and shall be disclosed only with the written consent or the use of assistive technology of the resident affected or his or her legal representative, or if any disclosure is required by court order.

B. Identity of Complainant or Resident records described in §§1.4.7 and 1.5.1(A)(3)(b) of this Part may be disclosed only at the discretion of the Ombudsman (or the person designated by the Ombudsman to disclose the files, records and other information); and

1. The Ombudsperson is prohibited from the disclosure of the identity of any complainant or resident with respect to whom the Office maintains such files, records and other information unless-

a. The complainant or resident, or the legal representative of the complainant or resident, communicates informed consent to the disclosure and the consent is given in writing or through the use of assistive technology;

b. the complainant or resident gives informed consent orally or through the use of assistive technology; and

c. the consent is documented contemporaneously in a writing made by a representative of the Office in accordance with such requirements as the State agency shall establish; or

2. the disclosure is required by court order.

C. Should the Ombudsperson or any representative of the Office have reason to believe that the complainant or resident is unable to provide informed consent, disclosure of the complainant or resident identity shall be prohibited unless otherwise provided by law.

1.5.3Retaliation Prohibited

No discriminatory, disciplinary, or retaliatory action shall be taken by a facility or other entity with respect to any resident, employee, or other person for filing a complaint with providing information to, or otherwise cooperating with any representative of the Office.

1.5.4Immunity from Liability

A. Any person, institution, or official who in good faith participates in the registering of a complaint, or who in good faith investigates that complaint or provides access to those persons carrying out the investigation, or who participates in a judicial proceeding resulting from that complaint, is immune from any civil or criminal liability that might otherwise be a result of these actions.

1. For the purpose of any civil or criminal proceedings, there is a rebuttable presumption that any person acting pursuant to R.I. Gen. Laws Chapter 42-66.7, as amended, did so in good faith.

1.5.5 Noninterference

No person shall willfully interfere with the ombudsperson in the performance of the ombudsperson's official duties.

1.5.6Penalty for Violations

Every person who willfully violates the provisions of R.I. Gen. Laws § 42-66.7-8 (retaliation prohibited) or R.I. Gen. Laws § 42-66.7-14(non-interference), as amended, will be subject to a fine up to one thousand dollars ($1,000) for each violation of these sections and any other remedy provided for in Rhode Island law.

218 R.I. Code R. 218-RICR-40-00-1.5