Section 4.06 - Access to Records and Record Privacy(1)Access or Inspection by the Individual, Guardian, or Representative.(a) The individual, guardian, designated representative, or other legally authorized representative shall be permitted to inspect and copy the individual's records upon request. Legally authorized representatives shall be permitted to inspect and copy on request only those records relevant to those matters within their authority.(b) When necessary for the understanding of the individual, guardian, or representative, the staff shall read or interpret the record.(2)Inspection by Other Persons. Records of an individual shall be private and not open to inspection by third parties, other than those in 115 CMR 4.06(1) ), except as provided in 115 CMR 4.06(2).(a) Records shall be open to inspection by a third party upon informed consent by the individual or guardian:1. Before consent is obtained, the individual or guardian shall be afforded an opportunity to examine the records to be released , and shall be provided with the name of the recipient, possible uses of the information, and possible risks and benefits of, and alternatives to disclosure.2. A record of such authorization shall be included in the individual's record.(b) Records of an individual shall be open to inspection upon proper judicial order. For the purpose of 115 CMR 4.06(2)(b), the term "proper judicial order" shall mean an order signed by a justice or special justice of a court of competent jurisdiction.(c) The head of the provider or a designee shall provide access to an individual's record by: 1. Provider staff, as necessary and appropriate, including the human rights officer and associated professional consultants providing habilitation services and supports to the individual;2. Persons authorized by the Department to monitor the quality of services and supports offered to the individual, including the human rights committee ;3. Persons approved by the Department and authorized under Department regulations to engage in research;4. Agencies which require specified information as a prerequisite for third party reimbursement of essential service;5. Department investigators appointed to conduct an investigation pursuant to 115 CMR 9.00 or M.G.L. c. 19C;6. Agencies or attorneys who are authorized by statute, by court decision, or by the Department to represent, advocate for, or protect the legal rights of the individual.(d) Where the individual is legally competent, but not capable in fact of making a knowing decision concerning the release of records, the head of the provider or a designee may authorize, where necessary and appropriate, inspection of records by persons likely to further the habilitation of the individual, including: 1. Staff of providers proposed to provide habilitation services to the individual in the near future;2. Insurers, trustees, and other persons through whom financial or legal assistance is or may be available.(e) The head of the provider or a designee may make records available, as necessary and appropriate, to a physician who requests such records in the treatment of a medical emergency; provided, however, that the individual and any guardian are given notice of the access as soon as possible.(f) The provisions of 115 CMR 4.06(2)(a) through (e) notwithstanding, the Commissioner or the Commissioner's written designee may authorize access to individual records when deemed in the best interest of an individual or individuals served by the Department.(g) The Commissioner may authorize access to individual records by attorneys representing the Department when necessary to the defense of specific legal claims brought by, concerning, or on behalf of the individual against the Commonwealth, the Department, or its agents or employees.(3)Restrictions on Scope of Access. Where the head of the provider or a designee authorizes release of the records, every precaution shall be taken to protect the confidentiality of the individual.(a) The head of the provider or a designee shall, wherever possible, set reasonable restrictions on access to a person's records by ascertaining from the area office director the persons who may inspect the record and the permitted uses to be made of the record, specifying the duration of time that the record may be held, and setting any other restrictions that will serve to protect the confidentiality of the record.(b) Only those records which are necessary to meet the legitimate purposes of the requesting person(s) shall be released, and, whenever possible, the name or personal identifying information of the individual shall be with held .(c) A listing shall be kept of every person or organization, other than those identified in 115 CMR 4.06(1) and 4.06(2)(c)1., given access to the individual's records, the uses to be made of that information, a brief description of the information which has been released, and the person authorizing access. A list of such accesses shall be made available to the individual, guardian, designated representative, legally authorized representative, and the human rights committee, upon request.(d) The individual, guardian, designated representative, or legally authorized representative of the individual may challenge a decision to permit access to a record by filing a complaint with the head of the provider in accordance with the Department's regulations on investigations, 115 CMR 9.00. The provider shall promptly send a copy of this complaint to the human rights committee. Once a complaint is filed to challenge access to a record, no records which are the subject of the complaint shall be further disclosed to the person(s) or organization(s) involved until the complaint is resolved.(e) An individual or guardian shall be informed of a subpoena or court order commanding production of an individual's records in a court or agency proceeding, and of the individual's right to request the court to quash or modify the subpoena or order on the grounds that it is unreasonable or oppressive, or on any other grounds permitted by law.(4)Accuracy of Information. The record maintained by the provider and area office shall contain accurate, complete, timely, and relevant information, consistent with the requirements of 115 CMR 4.03. (a) If an individual or guardian believes that the record contains inaccurate or misleading information, or objects to the collection of information or its use, he or she may file a complaint with the head of the provider. If the individual or guardian seeks to challenge the decision made at this level, or if the complaint concerns information contained in the records at the office of the case management team, a complaint may be filed with the Department. A copy of this complaint shall be sent promptly to the human rights committee.(b) If an individual or guardian believes that the record contains inaccurate or misleading information, he or she may prepare a statement of disagreement, with assistance if requested, which shall be entered into the record.(5)Disclosure of Existence of Record. The provider shall inform an individual, guardian, or designated or legal representative, upon request, whether the individual is the subject of a record system maintained by the provider.