Bill Text: IL SB1510 | 2019-2020 | 101st General Assembly | Engrossed


Bill Title: Amends the Nursing Home Care Act. Makes a technical change in a Section concerning the short title.

Spectrum: Partisan Bill (Democrat 78-0)

Status: (Engrossed) 2019-05-30 - Added Alternate Co-Sponsor Rep. Robyn Gabel [SB1510 Detail]

Download: Illinois-2019-SB1510-Engrossed.html



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1 AN ACT concerning regulation.
2 Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4 Section 5. The Nursing Home Care Act is amended by changing
5Sections 2-106.1, 2-204, 3-202.05, and 3-209 and by adding
6Section 3-305.8 as follows:
7 (210 ILCS 45/2-106.1)
8 Sec. 2-106.1. Drug treatment.
9 (a) A resident shall not be given unnecessary drugs. An
10unnecessary drug is any drug used in an excessive dose,
11including in duplicative therapy; for excessive duration;
12without adequate monitoring; without adequate indications for
13its use; or in the presence of adverse consequences that
14indicate the drugs should be reduced or discontinued. The
15Department shall adopt, by rule, the standards for unnecessary
16drugs contained in interpretive guidelines issued by the United
17States Department of Health and Human Services for the purposes
18of administering Titles XVIII and XIX of the Social Security
19Act.
20 (b) Psychotropic medication shall not be administered
21prescribed without the informed consent of the resident or , the
22resident's surrogate decision maker guardian, or other
23authorized representative. "Psychotropic medication" means

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1medication that is used for or listed as used for psychotropic
2antipsychotic, antidepressant, antimanic, or antianxiety
3behavior modification or behavior management purposes in the
4latest editions of the AMA Drug Evaluations or the Physician's
5Desk Reference. No later than January 1, 2021, the The
6Department shall adopt, by rule, a protocol specifying how
7informed consent for psychotropic medication may be obtained or
8refused. The protocol shall require, at a minimum, a discussion
9between (i) the resident or the resident's surrogate decision
10maker authorized representative and (ii) the resident's
11physician, a registered pharmacist (who is not a dispensing
12pharmacist for the facility where the resident lives), or a
13licensed nurse about the possible risks and benefits of a
14recommended medication and the use of standardized consent
15forms designated by the Department. The protocol shall include
16informing the resident, surrogate decision maker, or both of
17the existence of a copy of: the resident's care plan; the
18facility policies and procedures adopted in compliance with
19subsection (b-15) of this Section; and that all of the
20resident's care plans and the facility's policies are available
21to the resident or surrogate decision maker upon request. Each
22form developed by the Department (i) shall be written in plain
23language, (ii) shall be able to be downloaded from the
24Department's official website, (iii) shall include information
25specific to the psychotropic medication for which consent is
26being sought, and (iv) shall be used for every resident for

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1whom psychotropic drugs are prescribed. The Department shall
2utilize the rules, protocols, and forms previously developed
3and implemented under the Specialized Mental Health
4Rehabilitation Act of 2013, except to the extent that this Act
5requires a different procedure, and except that the maximum
6possible period for informed consent shall be until: (1) a
7change in the prescription occurs, either as to type of
8psychotropic medication or dosage; or (2) a resident's care
9plan changes. The Department shall not be liable for the
10implementation of these rules, protocols, or forms. In addition
11to creating those forms, the Department shall approve the use
12of any other informed consent forms that meet criteria
13developed by the Department. At the discretion of the
14Department, informed consent forms may include side effects
15that the Department reasonably believes are more common, with a
16direction that more complete information can be found via a
17link on the Department's website to third-party websites with
18more complete information, such as the United States Food and
19Drug Administration's website. The Department or a facility
20shall incur no liability for information provided on a consent
21form so long as the consent form is substantially accurate
22based upon generally accepted medical principles and, in the
23case of the Department's liability, if the Department
24references the website links.
25 Informed consent shall be sought by the facility from the
26resident unless the resident's attending physician determines

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1that the resident lacks decisional capacity, as determined
2under the Health Care Surrogate Act. If the resident lacks
3decisional capacity, the facility shall seek informed consent
4from the resident's surrogate decision maker.
5 For the purpose of this Section, "surrogate decision maker"
6means the following persons to be given priority in the order
7presented: (1) the guardian of the resident appointed under the
8Uniform Adult Guardianship and Protection Proceedings
9Jurisdiction Act; (2) the resident's attorney-in-fact who has
10been designated under the Mental Health Treatment Preference
11Declaration Act; (3) the resident's health care agent who has
12the authority to give consent under the Illinois Power of
13Attorney Act; (4) the resident's surrogate decision maker under
14the Health Care Surrogate Act; and (5) the resident's resident
15representative, as that term is defined under Section 483.5 of
16Title 42 of the Code of Federal Regulations.
17 In addition to any other penalty prescribed by law, a
18facility that is found to have violated this subsection, or the
19federal certification requirement that informed consent be
20obtained before administering a psychotropic medication, shall
21thereafter be required to obtain the signatures of 2 licensed
22health care professionals on every form purporting to give
23informed consent for the administration of a psychotropic
24medication, certifying the personal knowledge of each health
25care professional that the consent was obtained in compliance
26with the requirements of this subsection.

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1 (b-5) A facility must obtain voluntary informed consent, in
2writing, from a resident or the resident's surrogate decision
3maker before administering or dispensing a psychotropic
4medication to that resident.
5 (b-10) No facility shall deny admission or continued
6residency to a person on the basis of the person's or
7resident's, or the person's or resident's surrogate decision
8maker's, refusal of the administration of psychotropic
9medication, unless the facility can demonstrate that the
10resident's refusal would place the health and safety of the
11resident, the facility staff, other residents, or visitors at
12risk.
13 A facility that alleges that the resident's refusal to
14consent to the administration of psychotropic medication will
15place the health and safety of the resident, the facility
16staff, other residents, or visitors at risk must: (1) document
17the alleged risk in detail; (2) present this documentation to
18the resident or the resident's surrogate decision maker, to the
19Department, and to the Office of the State Long Term Care
20Ombudsman; and (3) inform the resident or his or her surrogate
21decision maker of his or her right to appeal to the Department.
22The documentation of the alleged risk shall include a
23description of all nonpharmacological or alternative care
24options attempted and why they were unsuccessful.
25 (b-15) Within 100 days after the effective date of this
26amendatory Act of the 101st General Assembly, all facilities

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1shall implement written policies and procedures for compliance
2with this Section. The Department shall thereafter have the
3discretion to review these written policies and procedures and
4either:
5 (1) give written notice to the facility that the
6 policies or procedures are sufficient to demonstrate the
7 facility's intent to comply with this Section; or
8 (2) provide written notice to the facility that the
9 proposed policies and procedures are deficient, identify
10 the areas that are deficient, and provide 30 days for the
11 facility to submit amended policies and procedures that
12 demonstrate its intent to comply with this Section.
13 A facility's failure to submit the documentation required
14under this subsection is sufficient to demonstrate its intent
15to not comply with this Section and shall be grounds for review
16by the Department.
17 All facilities must provide training and education, as
18required under this Section, to all personnel involved in
19providing care to residents and train and educate such
20personnel on the methods and procedures to effectively
21implement the facility's policies. Training and education
22provided under this Section must be documented in each
23personnel file.
24 (b-20) Any violation of this Section may be reported to the
25Department for review. At its discretion, the Department may
26proceed with disciplinary action against the licensee of the

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1facility and facility administrative personnel. In any
2administrative disciplinary action under this subsection, the
3Department shall have the discretion to determine the gravity
4of the violation and, taking into account mitigating and
5aggravating circumstances and facts, may adjust the
6disciplinary action accordingly.
7 (b-25) A violation of informed consent that, for an
8individual resident, lasts for 7 days or more under this
9Section is, at a minimum, a Type "A" violation. A second
10violation of informed consent within a year from a previous
11violation in the same facility regardless of the duration of
12the second violation is, at a minimum, a Type "A" violation.
13 (b-30) Any violation of this Section by a facility may be
14prosecuted by an action brought by the Attorney General of
15Illinois for injunctive relief, civil penalties, or both
16injunctive relief and civil penalties in the name of the People
17of Illinois. The Attorney General may initiate such action upon
18his or her own complaint or the complaint of any other
19interested party.
20 (b-35) Any resident who has been administered a
21psychotropic medication in violation of this Section may bring
22an action for injunctive relief, civil damages, and costs and
23attorney's fees against any person and facility responsible for
24the violation.
25 (b-40) An action under this Section must be filed within 2
26years of either the date of discovery of the violation that

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1gave rise to the claim or the last date of an instance of a
2noncompliant administration of psychotropic medication to the
3resident, whichever is later.
4 (b-45) A facility subject to action under this Section
5shall be liable for damages of up to $500 for each day that the
6facility or person violates the requirements of this Section.
7 (b-55) The rights provided for in this Section are
8cumulative to existing resident rights. No part of this Section
9shall be interpreted as abridging, abrogating, or otherwise
10diminishing existing resident rights or causes of action at law
11or equity.
12 (c) The requirements of this Section are intended to
13control in a conflict with the requirements of Sections 2-102
14and 2-107.2 of the Mental Health and Developmental Disabilities
15Code with respect to the administration of psychotropic
16medication.
17(Source: P.A. 95-331, eff. 8-21-07; 96-1372, eff. 7-29-10.)
18 (210 ILCS 45/2-204) (from Ch. 111 1/2, par. 4152-204)
19 Sec. 2-204. The Director shall appoint a Long-Term Care
20Facility Advisory Board to consult with the Department and the
21residents' advisory councils created under Section 2-203.
22 (a) The Board shall be comprised of the following persons:
23 (1) The Director who shall serve as chairman, ex
24 officio and nonvoting; and
25 (2) One representative each of the Department of

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1 Healthcare and Family Services, the Department of Human
2 Services, the Department on Aging, and the Office of the
3 State Fire Marshal, all nonvoting members;
4 (3) One member who shall be a physician licensed to
5 practice medicine in all its branches;
6 (4) One member who shall be a registered nurse selected
7 from the recommendations of professional nursing
8 associations;
9 (5) Four members who shall be selected from the
10 recommendations by organizations whose membership consists
11 of facilities;
12 (6) Two members who shall represent the general public
13 who are not members of a residents' advisory council
14 established under Section 2-203 and who have no
15 responsibility for management or formation of policy or
16 financial interest in a facility;
17 (7) One member who is a member of a residents' advisory
18 council established under Section 2-203 and is capable of
19 actively participating on the Board, or, if the Department
20 is unable to identify a member meeting these requirements,
21 one member who shall be a certified sub-state ombudsman
22 experienced in working with resident councils; and
23 (8) One member who shall be selected from the
24 recommendations of consumer organizations which engage
25 solely in advocacy or legal representation on behalf of
26 residents and their immediate families; .

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1 (9) One member who is from a nongovernmental statewide
2 organization that advocates for seniors and Illinois
3 residents over the age of 50;
4 (10) One member who is from a statewide association
5 dedicated to Alzheimer's disease care, support, and
6 research;
7 (11) One member who is a member of a trade or labor
8 union representing persons who provide care services in
9 facilities; and
10 (12) One member who advocates for the welfare, rights,
11 and care of long-term care residents and represents family
12 caregivers of residents in facilities.
13 (b) The terms of those members of the Board appointed prior
14to the effective date of this amendatory Act of 1988 shall
15expire on December 31, 1988. Members of the Board created by
16this amendatory Act of 1988 shall be appointed to serve for
17terms as follows: 3 for 2 years, 3 for 3 years and 3 for 4
18years. The member of the Board added by this amendatory Act of
191989 shall be appointed to serve for a term of 4 years. Each
20successor member shall be appointed for a term of 4 years. Any
21member appointed to fill a vacancy occurring prior to the
22expiration of the term for which his predecessor was appointed
23shall be appointed for the remainder of such term. The Board
24shall meet as frequently as the chairman deems necessary, but
25not less than 4 times each year. Upon request by 4 or more
26members the chairman shall call a meeting of the Board. The

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1affirmative vote of 7 6 members of the Board shall be necessary
2for Board action. A member of the Board can designate a
3replacement to serve at the Board meeting and vote in place of
4the member by submitting a letter of designation to the
5chairman prior to or at the Board meeting. The Board members
6shall be reimbursed for their actual expenses incurred in the
7performance of their duties.
8 (c) The Advisory Board shall advise the Department of
9Public Health on all aspects of its responsibilities under this
10Act and the Specialized Mental Health Rehabilitation Act of
112013, including the format and content of any rules promulgated
12by the Department of Public Health. Any such rules, except
13emergency rules promulgated pursuant to Section 5-45 of the
14Illinois Administrative Procedure Act, promulgated without
15obtaining the advice of the Advisory Board are null and void.
16In the event that the Department fails to follow the advice of
17the Board, the Department shall, prior to the promulgation of
18such rules, transmit a written explanation of the reason
19thereof to the Board. During its review of rules, the Board
20shall analyze the economic and regulatory impact of those
21rules. If the Advisory Board, having been asked for its advice,
22fails to advise the Department within 90 days, the rules shall
23be considered acted upon.
24(Source: P.A. 97-38, eff. 6-28-11; 98-104, eff. 7-22-13;
2598-463, eff. 8-16-13.)

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1 (210 ILCS 45/3-202.05)
2 Sec. 3-202.05. Staffing ratios effective July 1, 2010 and
3thereafter.
4 (a) For the purpose of computing staff to resident ratios,
5direct care staff shall include:
6 (1) registered nurses;
7 (2) licensed practical nurses;
8 (3) certified nurse assistants;
9 (4) psychiatric services rehabilitation aides;
10 (5) rehabilitation and therapy aides;
11 (6) psychiatric services rehabilitation coordinators;
12 (7) assistant directors of nursing;
13 (8) 50% of the Director of Nurses' time; and
14 (9) 30% of the Social Services Directors' time.
15 The Department shall, by rule, allow certain facilities
16subject to 77 Ill. Admin. Code 300.4000 and following (Subpart
17S) to utilize specialized clinical staff, as defined in rules,
18to count towards the staffing ratios.
19 Within 120 days of the effective date of this amendatory
20Act of the 97th General Assembly, the Department shall
21promulgate rules specific to the staffing requirements for
22facilities federally defined as Institutions for Mental
23Disease. These rules shall recognize the unique nature of
24individuals with chronic mental health conditions, shall
25include minimum requirements for specialized clinical staff,
26including clinical social workers, psychiatrists,

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1psychologists, and direct care staff set forth in paragraphs
2(4) through (6) and any other specialized staff which may be
3utilized and deemed necessary to count toward staffing ratios.
4 Within 120 days of the effective date of this amendatory
5Act of the 97th General Assembly, the Department shall
6promulgate rules specific to the staffing requirements for
7facilities licensed under the Specialized Mental Health
8Rehabilitation Act of 2013. These rules shall recognize the
9unique nature of individuals with chronic mental health
10conditions, shall include minimum requirements for specialized
11clinical staff, including clinical social workers,
12psychiatrists, psychologists, and direct care staff set forth
13in paragraphs (4) through (6) and any other specialized staff
14which may be utilized and deemed necessary to count toward
15staffing ratios.
16 (b) (Blank). Beginning January 1, 2011, and thereafter,
17light intermediate care shall be staffed at the same staffing
18ratio as intermediate care.
19 (b-5) For purposes of the minimum staffing ratios in this
20Section, all residents shall be classified as requiring either
21skilled care or intermediate care.
22 As used in this subsection:
23 "Intermediate care" means basic nursing care and other
24restorative services under periodic medical direction.
25 "Skilled care" means skilled nursing care, continuous
26skilled nursing observations, restorative nursing, and other

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1services under professional direction with frequent medical
2supervision.
3 (c) Facilities shall notify the Department within 60 days
4after the effective date of this amendatory Act of the 96th
5General Assembly, in a form and manner prescribed by the
6Department, of the staffing ratios in effect on the effective
7date of this amendatory Act of the 96th General Assembly for
8both intermediate and skilled care and the number of residents
9receiving each level of care.
10 (d)(1) (Blank). Effective July 1, 2010, for each resident
11needing skilled care, a minimum staffing ratio of 2.5 hours of
12nursing and personal care each day must be provided; for each
13resident needing intermediate care, 1.7 hours of nursing and
14personal care each day must be provided.
15 (2) (Blank). Effective January 1, 2011, the minimum
16staffing ratios shall be increased to 2.7 hours of nursing and
17personal care each day for a resident needing skilled care and
181.9 hours of nursing and personal care each day for a resident
19needing intermediate care.
20 (3) (Blank). Effective January 1, 2012, the minimum
21staffing ratios shall be increased to 3.0 hours of nursing and
22personal care each day for a resident needing skilled care and
232.1 hours of nursing and personal care each day for a resident
24needing intermediate care.
25 (4) (Blank). Effective January 1, 2013, the minimum
26staffing ratios shall be increased to 3.4 hours of nursing and

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1personal care each day for a resident needing skilled care and
22.3 hours of nursing and personal care each day for a resident
3needing intermediate care.
4 (5) Effective January 1, 2014, the minimum staffing ratios
5shall be increased to 3.8 hours of nursing and personal care
6each day for a resident needing skilled care and 2.5 hours of
7nursing and personal care each day for a resident needing
8intermediate care.
9 (e) Ninety days after the effective date of this amendatory
10Act of the 97th General Assembly, a minimum of 25% of nursing
11and personal care time shall be provided by licensed nurses,
12with at least 10% of nursing and personal care time provided by
13registered nurses. These minimum requirements shall remain in
14effect until an acuity based registered nurse requirement is
15promulgated by rule concurrent with the adoption of the
16Resource Utilization Group classification-based payment
17methodology, as provided in Section 5-5.2 of the Illinois
18Public Aid Code. Registered nurses and licensed practical
19nurses employed by a facility in excess of these requirements
20may be used to satisfy the remaining 75% of the nursing and
21personal care time requirements. Notwithstanding this
22subsection, no staffing requirement in statute in effect on the
23effective date of this amendatory Act of the 97th General
24Assembly shall be reduced on account of this subsection.
25 (f) The Department shall adopt rules on or before January
261, 2020 establishing a system for determining compliance with

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1minimum direct care staffing standards and the requirements of
277 Ill. Adm. Code 300.1230. Compliance shall be determined at
3least quarterly using the Centers for Medicare and Medicaid
4Services' payroll-based journal and the facility's census and
5payroll data, which shall be obtained quarterly by the
6Department. The Department shall, at minimum, use the quarterly
7payroll-based journal and census and payroll data to calculate
8the number of hours provided per resident per day and compare
9this ratio to the minimums required by this Section as impacted
10by a waiver of the percentage requirement under Section
113-303.1. The Department shall publish the data quarterly on its
12website.
13 In enforcing the minimum staffing ratios, the Department
14shall take into account that transitions between intermediate
15care and skilled care occur regularly.
16 (g) The Department shall adopt rules by January 1, 2020
17establishing monetary penalties for facilities not in
18compliance with minimum staffing standards under this Section.
19No monetary penalty may be issued during the implementation
20period, which shall be July 1, 2020 through September 30, 2020.
21If a facility is found to be noncompliant during the
22implementation period, the Department shall provide a written
23notice identifying the staffing deficiency and require the
24facility to provide a sufficiently detailed correction plan to
25meet the statutory minimum staffing levels. Monetary penalties
26shall be imposed beginning no later than October 1, 2020 and

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1quarterly thereafter and shall be based on the latest quarter
2for which the Department has data.
3 Monetary penalties shall be established based on a formula
4that calculates the cost of wages and benefits for the missing
5staff hours and shall be no less than twice the calculated cost
6of wages and benefits for the missing staff hours during the
7quarter. The penalty shall be imposed regardless of whether the
8facility has committed other violations of this Act during the
9same quarter. The penalty may not be waived; however, if the
10violation is not more than a 5% deviation of the required
11minimum staffing requirements, the Department shall have the
12discretion to determine the gravity of the violation and,
13taking into account mitigating and aggravating circumstances
14and facts, may reduce the penalty amount. Nothing in this
15Section precludes a facility from being given a high risk
16designation for failing to comply with this Section that, when
17cited with other violations of this Act, increases the
18otherwise applicable penalty.
19 (h) A violation of the minimum staffing requirements under
20this Section is, at minimum, a Type "B" violation. In the event
21that the violation is not more than a 5% deviation of the
22required minimum staffing requirements, the Department shall
23have the discretion to determine the gravity of the violation
24and, taking into account mitigating and aggravating
25circumstances and facts, may assess a different type or class
26of violation.

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1(Source: P.A. 97-689, eff. 6-14-12; 98-104, eff. 7-22-13.)
2 (210 ILCS 45/3-209) (from Ch. 111 1/2, par. 4153-209)
3 Sec. 3-209. Required posting of information.
4 (a) Every facility shall conspicuously post for display in
5an area of its offices accessible to residents, employees, and
6visitors the following:
7 (1) Its current license;
8 (2) A description, provided by the Department, of
9 complaint procedures established under this Act and the
10 name, address, and telephone number of a person authorized
11 by the Department to receive complaints;
12 (3) A copy of any order pertaining to the facility
13 issued by the Department or a court; and
14 (4) A list of the material available for public
15 inspection under Section 3-210.
16 (b) A facility that has received a notice of violation for
17a violation of the minimum staffing requirements under Section
183-202.05 shall display, for 6 months following the date that
19the notice of violation was issued, a notice stating in Calibri
20(body) font and 26-point type in black letters on an 8.5 by 11
21inch white paper the following:
22"Notice Dated: ...................
23This facility did not have enough staff to meet the minimum
24staffing ratios for facility residents during the period from

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1........ to ....... Posted at the direction of the Illinois
2Department of Public Health."
3The notice must be posted, at a minimum, at all publicly used
4exterior entryways into the facility, inside the main entrance
5lobby, and next to any registration desk for easily accessible
6viewing. The notice must also be posted on the main page of the
7facility's website. The Department shall have the discretion to
8determine the gravity of any violation and, taking into account
9mitigating and aggravating circumstances and facts, may reduce
10the requirement of, and amount of time for, posting the notice.
11(Source: P.A. 81-1349.)
12 (210 ILCS 45/3-305.8 new)
13 Sec. 3-305.8. Database of nursing home quarterly reports
14and citations.
15 (a) The Department shall publish the quarterly reports of
16facilities in violation of this Act in an easily searchable,
17comprehensive, and downloadable electronic database on the
18Department's website in language that is easily understood. The
19database shall include quarterly reports of all facilities that
20have violated this Act starting from 2005 and shall continue
21indefinitely. The database shall be in an electronic format
22with active hyperlinks to individual facility citations. The
23database shall be updated quarterly and shall be electronically
24searchable using a facility's name and address and the facility

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1owner's name and address.
2 (b) In lieu of the database under subsection (a), the
3Department may publish the list mandated under Section 3-304 in
4an easily searchable, comprehensive, and downloadable
5electronic database on the Department's website in plain
6language. The database shall include the information from all
7such lists since 2005 and shall continue indefinitely. The
8database shall be in an electronic format with active
9hyperlinks to individual facility citations. The database
10shall be updated quarterly and shall be electronically
11searchable using a facility's name and address and the facility
12owner's name and address.
13 Section 99. Effective date. This Act takes effect upon
14becoming law.
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