(a) The long-term care ombudsman is allowed access to any resident's records, including medical records, reasonably necessary to any investigation carried out pursuant to the provisions of section ten of this article, under the following conditions:

Terms Used In West Virginia Code 16-5L-12

  • Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
  • Guardian: means a person lawfully invested with the power and charged with the duty of taking care of another person and managing the property and rights of another person who for some peculiarity of status or defect of age, understanding or self control is considered incapable of administering his or her own affairs, to include committees or other references under the code. See West Virginia Code 16-5L-3
  • Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
  • in writing: includes any representation of words, letters, or figures, whether by printing, engraving, writing, or otherwise. See West Virginia Code 2-2-10
  • Long-term care facility: means any nursing home, personal care home, or residential board and care home as defined in section two, article five-c of this chapter. See West Virginia Code 16-5L-3
  • Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
  • Regional long-term care ombudsman: means any paid staff of a designated regional long-term care ombudsman program who has obtained appropriate certification from the state commission on aging and meets the qualifications set forth in section seven of this article. See West Virginia Code 16-5L-3
  • Resident: means an individual living in a nursing home, personal care home, residential board and care home, or any long-term care facility as defined in subsection (b) of this section, or who has lived in such a setting, or who has made application to live in such a setting: Provided, That nothing in this article may be construed to give a long-term care ombudsman the right to obtain the waiting list of a long-term care facility. See West Virginia Code 16-5L-3
  • State: when applied to a part of the United States and not restricted by the context, includes the District of Columbia and the several territories, and the words "United States" also include the said district and territories. See West Virginia Code 2-2-10

(1) If the resident is competent and has the ability to write, access may only be obtained by the written consent of the resident;

(2) If the resident is competent but unable to write, oral consent may be given in the presence of a third party who shall witness the resident's consent in writing;

(3) If the resident is under a guardianship committee as set forth in article eleven, chapter twenty-seven of this code or has granted a medical power of attorney which is in effect as set forth in article thirty-a, chapter sixteen of this code, or granted any other power of attorney which is in effect, access may only be obtained by the written consent of the guardian or attorney in fact, unless the existence of guardianship, medical power of attorney or attorney in fact is unknown to the long-term care ombudsman upon investigation and to the long-term care facility, or unless the guardian or attorney in fact cannot be reached through normal communications channels within five working days;

(4) If the resident is unable to express written or oral consent and there is no guardian or attorney in fact or the notification of the guardian or attorney in fact is not achieved for the reasons set forth in subsection (3) of this section, or if the resident is deceased, inspection of records may be made by the ombudsman.

(b) The state or regional long-term care ombudsman is allowed access to all records of any long-term care facility that are reasonably necessary for the investigation of a complaint under section ten of this article, including, but not limited to, facility incident reports, dietary records, policies and procedures of the facility that the facility is required to maintain under federal or state law, admission agreements, staffing schedules, any document depicting the actual staffing pattern of the facility and resident council and grievance committee minutes.