Illinois General Assembly - Full Text of SB1510
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Full Text of SB1510  101st General Assembly


Sen. Jacqueline Y. Collins

Filed: 4/5/2019





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2    AMENDMENT NO. ______. Amend Senate Bill 1510, AS AMENDED,
3by replacing everything after the enacting clause with the
5    "Section 5. The Nursing Home Care Act is amended by
6changing Sections 2-106.1, 2-204, 3-202.05, and 3-209 and by
7adding Section 3-305.8 as follows:
8    (210 ILCS 45/2-106.1)
9    Sec. 2-106.1. Drug treatment.
10    (a) A resident shall not be given unnecessary drugs. An
11unnecessary drug is any drug used in an excessive dose,
12including in duplicative therapy; for excessive duration;
13without adequate monitoring; without adequate indications for
14its use; or in the presence of adverse consequences that
15indicate the drugs should be reduced or discontinued. The
16Department shall adopt, by rule, the standards for unnecessary



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1drugs contained in interpretive guidelines issued by the United
2States Department of Health and Human Services for the purposes
3of administering Titles XVIII and XIX of the Social Security
5    (b) Psychotropic medication shall not be administered
6prescribed without the informed consent of the resident or , the
7resident's surrogate decision maker guardian, or other
8authorized representative. "Psychotropic medication" means
9medication that is used for or listed as used for psychotropic
10antipsychotic, antidepressant, antimanic, or antianxiety
11behavior modification or behavior management purposes in the
12latest editions of the AMA Drug Evaluations or the Physician's
13Desk Reference. No later than January 1, 2021, the The
14Department shall adopt, by rule, a protocol specifying how
15informed consent for psychotropic medication may be obtained or
16refused. The protocol shall require, at a minimum, a discussion
17between (i) the resident or the resident's surrogate decision
18maker authorized representative and (ii) the resident's
19physician, a registered pharmacist (who is not a dispensing
20pharmacist for the facility where the resident lives), or a
21licensed nurse about the possible risks and benefits of a
22recommended medication and the use of standardized consent
23forms designated by the Department. The protocol shall include
24informing the resident, surrogate decision maker, or both of
25the existence of a copy of: the resident's care plan; the
26facility policies and procedures adopted in compliance with



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1subsection (b-15) of this Section; and that all of the
2resident's care plans and the facility's policies are available
3to the resident or surrogate decision maker upon request. Each
4form developed by the Department (i) shall be written in plain
5language, (ii) shall be able to be downloaded from the
6Department's official website, (iii) shall include information
7specific to the psychotropic medication for which consent is
8being sought, and (iv) shall be used for every resident for
9whom psychotropic drugs are prescribed. The Department shall
10utilize the rules, protocols, and forms previously developed
11and implemented under the Specialized Mental Health
12Rehabilitation Act of 2013, except to the extent that this Act
13requires a different procedure, and except that the maximum
14possible period for informed consent shall be until: (1) a
15change in the prescription occurs, either as to type of
16psychotropic medication or dosage; or (2) a resident's care
17plan changes. The Department shall not be liable for the
18implementation of these rules, protocols, or forms. In addition
19to creating those forms, the Department shall approve the use
20of any other informed consent forms that meet criteria
21developed by the Department. At the discretion of the
22Department, informed consent forms may include side effects
23that the Department reasonably believes are more common, with a
24direction that more complete information can be found via a
25link on the Department's website to third-party websites with
26more complete information, such as the United States Food and



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1Drug Administration's website. The Department or a facility
2shall incur no liability for information provided on a consent
3form so long as the consent form is substantially accurate
4based upon generally accepted medical principles and, in the
5case of the Department's liability, if the Department
6references the website links.
7    Informed consent shall be sought by the facility from the
8resident unless the resident's attending physician determines
9that the resident lacks decisional capacity, as determined
10under the Health Care Surrogate Act. If the resident lacks
11decisional capacity, the facility shall seek informed consent
12from the resident's surrogate decision maker.
13    For the purpose of this Section, "surrogate decision maker"
14means the following persons to be given priority in the order
15presented: (1) the guardian of the resident appointed under the
16Uniform Adult Guardianship and Protection Proceedings
17Jurisdiction Act; (2) the resident's attorney-in-fact who has
18been designated under the Mental Health Treatment Preference
19Declaration Act; (3) the resident's health care agent who has
20the authority to give consent under the Illinois Power of
21Attorney Act; (4) the resident's surrogate decision maker under
22the Health Care Surrogate Act; and (5) the resident's resident
23representative, as that term is defined under Section 483.5 of
24Title 42 of the Code of Federal Regulations.
25    In addition to any other penalty prescribed by law, a
26facility that is found to have violated this subsection, or the



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1federal certification requirement that informed consent be
2obtained before administering a psychotropic medication, shall
3thereafter be required to obtain the signatures of 2 licensed
4health care professionals on every form purporting to give
5informed consent for the administration of a psychotropic
6medication, certifying the personal knowledge of each health
7care professional that the consent was obtained in compliance
8with the requirements of this subsection.
9    (b-5) A facility must obtain voluntary informed consent, in
10writing, from a resident or the resident's surrogate decision
11maker before administering or dispensing a psychotropic
12medication to that resident.
13    (b-10) No facility shall deny admission or continued
14residency to a person on the basis of the person's or
15resident's, or the person's or resident's surrogate decision
16maker's, refusal of the administration of psychotropic
17medication, unless the facility can demonstrate that the
18resident's refusal would place the health and safety of the
19resident, the facility staff, other residents, or visitors at
21    A facility that alleges that the resident's refusal to
22consent to the administration of psychotropic medication will
23place the health and safety of the resident, the facility
24staff, other residents, or visitors at risk must: (1) document
25the alleged risk in detail; (2) present this documentation to
26the resident or the resident's surrogate decision maker, to the



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1Department, and to the Office of the State Long Term Care
2Ombudsman; and (3) inform the resident or his or her surrogate
3decision maker of his or her right to appeal to the Department.
4The documentation of the alleged risk shall include a
5description of all nonpharmacological or alternative care
6options attempted and why they were unsuccessful.
7    (b-15) Within 100 days after the effective date of this
8amendatory Act of the 101st General Assembly, all facilities
9shall implement written policies and procedures for compliance
10with this Section. The Department shall thereafter have the
11discretion to review these written policies and procedures and
13        (1) give written notice to the facility that the
14    policies or procedures are sufficient to demonstrate the
15    facility's intent to comply this Section; or
16        (2) provide written notice to the facility that the
17    proposed policies and procedures are deficient, identify
18    the areas that are deficient, and provide 30 days for the
19    facility to submit amended policies and procedures that
20    demonstrate its intent to comply with this Section.
21    A facility's failure to submit the documentation required
22under this subsection is sufficient to demonstrate its intent
23to not comply with this Section and shall be grounds for review
24by the Department.
25    All facilities must provide training and education, as
26required under this Section, to all personnel involved in



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1providing care to residents and train and educate such
2personnel on the methods and procedures to effectively
3implement the facility's policies. Training and education
4provided under this Section must be documented in each
5personnel file.
6    (b-20) Any violation of this Section may be reported to the
7Department for review. At its discretion, the Department may
8proceed with disciplinary action against the licensee of the
9facility and facility administrative personnel. In any
10administrative disciplinary action under this subsection, the
11Department shall have the discretion to determine the gravity
12of the violation and, taking into account mitigating and
13aggravating circumstances and facts, may adjust the
14disciplinary action accordingly.
15    (b-25) A violation of informed consent that, for an
16individual resident, lasts for 7 days or more under this
17Section is, at a minimum, a Type "A" violation. A second
18violation of informed consent within a year from a previous
19violation in the same facility regardless of the duration of
20the second violation is, at a minimum, a Type "A" violation.
21    (b-30) Any violation of this Section by a facility may be
22prosecuted by an action brought by the Attorney General of
23Illinois for injunctive relief, civil penalties, or both
24injunctive relief and civil penalties in the name of the People
25of Illinois. The Attorney General may initiate such action upon
26his or her own complaint or the complaint of any other



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1interested party.
2    (b-35) Any resident who has been administered a
3psychotropic medication in violation of this Section may bring
4an action for injunctive relief, civil damages, and costs and
5attorney's fees against any person and facility responsible for
6the violation.
7    (b-40) An action under this Section must be filed within 2
8years of either the date of discovery of the violation that
9gave rise to the claim or the last date of an instance of a
10noncompliant administration of psychotropic medication to the
11resident, whichever is later.
12    (b-45) A facility subject to action under this Section
13shall be liable for damages of up to $500 for each day that the
14facility or person violates the requirements of this Section.
15    (b-55) The rights provided for in this Section are
16cumulative to existing resident rights. No part of this Section
17shall be interpreted as abridging, abrogating, or otherwise
18diminishing existing resident rights or causes of action at law
19or equity.
20    (c) The requirements of this Section are intended to
21control in a conflict with the requirements of Sections 2-102
22and 2-107.2 of the Mental Health and Developmental Disabilities
23Code with respect to the administration of psychotropic
25(Source: P.A. 95-331, eff. 8-21-07; 96-1372, eff. 7-29-10.)



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1    (210 ILCS 45/2-204)  (from Ch. 111 1/2, par. 4152-204)
2    Sec. 2-204. The Director shall appoint a Long-Term Care
3Facility Advisory Board to consult with the Department and the
4residents' advisory councils created under Section 2-203.
5    (a) The Board shall be comprised of the following persons:
6        (1) The Director who shall serve as chairman, ex
7    officio and nonvoting; and
8        (2) One representative each of the Department of
9    Healthcare and Family Services, the Department of Human
10    Services, the Department on Aging, and the Office of the
11    State Fire Marshal, all nonvoting members;
12        (3) One member who shall be a physician licensed to
13    practice medicine in all its branches;
14        (4) One member who shall be a registered nurse selected
15    from the recommendations of professional nursing
16    associations;
17        (5) Four members who shall be selected from the
18    recommendations by organizations whose membership consists
19    of facilities;
20        (6) Two members who shall represent the general public
21    who are not members of a residents' advisory council
22    established under Section 2-203 and who have no
23    responsibility for management or formation of policy or
24    financial interest in a facility;
25        (7) One member who is a member of a residents' advisory
26    council established under Section 2-203 and is capable of



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1    actively participating on the Board, or, if the Department
2    is unable to identify a member meeting these requirements,
3    one member who shall be a certified sub-state ombudsman
4    experienced in working with resident councils; and
5        (8) One member who shall be selected from the
6    recommendations of consumer organizations which engage
7    solely in advocacy or legal representation on behalf of
8    residents and their immediate families; .
9        (9) One member who is from a nongovernmental statewide
10    organization that advocates for seniors and Illinois
11    residents over the age of 50;
12        (10) One member who is from a statewide association
13    dedicated to Alzheimer's disease care, support, and
14    research;
15        (11) One member who is a member of a trade or labor
16    union representing persons who provide care services in
17    facilities; and
18        (12) One member who advocates for the welfare, rights,
19    and care of long-term care residents and represents family
20    caregivers of residents in facilities.
21    (b) The terms of those members of the Board appointed prior
22to the effective date of this amendatory Act of 1988 shall
23expire on December 31, 1988. Members of the Board created by
24this amendatory Act of 1988 shall be appointed to serve for
25terms as follows: 3 for 2 years, 3 for 3 years and 3 for 4
26years. The member of the Board added by this amendatory Act of



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11989 shall be appointed to serve for a term of 4 years. Each
2successor member shall be appointed for a term of 4 years. Any
3member appointed to fill a vacancy occurring prior to the
4expiration of the term for which his predecessor was appointed
5shall be appointed for the remainder of such term. The Board
6shall meet as frequently as the chairman deems necessary, but
7not less than 4 times each year. Upon request by 4 or more
8members the chairman shall call a meeting of the Board. The
9affirmative vote of 7 6 members of the Board shall be necessary
10for Board action. A member of the Board can designate a
11replacement to serve at the Board meeting and vote in place of
12the member by submitting a letter of designation to the
13chairman prior to or at the Board meeting. The Board members
14shall be reimbursed for their actual expenses incurred in the
15performance of their duties.
16    (c) The Advisory Board shall advise the Department of
17Public Health on all aspects of its responsibilities under this
18Act and the Specialized Mental Health Rehabilitation Act of
192013, including the format and content of any rules promulgated
20by the Department of Public Health. Any such rules, except
21emergency rules promulgated pursuant to Section 5-45 of the
22Illinois Administrative Procedure Act, promulgated without
23obtaining the advice of the Advisory Board are null and void.
24In the event that the Department fails to follow the advice of
25the Board, the Department shall, prior to the promulgation of
26such rules, transmit a written explanation of the reason



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1thereof to the Board. During its review of rules, the Board
2shall analyze the economic and regulatory impact of those
3rules. If the Advisory Board, having been asked for its advice,
4fails to advise the Department within 90 days, the rules shall
5be considered acted upon.
6(Source: P.A. 97-38, eff. 6-28-11; 98-104, eff. 7-22-13;
798-463, eff. 8-16-13.)
8    (210 ILCS 45/3-202.05)
9    Sec. 3-202.05. Staffing ratios effective July 1, 2010 and
11    (a) For the purpose of computing staff to resident ratios,
12direct care staff shall include:
13        (1) registered nurses;
14        (2) licensed practical nurses;
15        (3) certified nurse assistants;
16        (4) psychiatric services rehabilitation aides;
17        (5) rehabilitation and therapy aides;
18        (6) psychiatric services rehabilitation coordinators;
19        (7) assistant directors of nursing;
20        (8) 50% of the Director of Nurses' time; and
21        (9) 30% of the Social Services Directors' time.
22    The Department shall, by rule, allow certain facilities
23subject to 77 Ill. Admin. Code 300.4000 and following (Subpart
24S) to utilize specialized clinical staff, as defined in rules,
25to count towards the staffing ratios.



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1    Within 120 days of the effective date of this amendatory
2Act of the 97th General Assembly, the Department shall
3promulgate rules specific to the staffing requirements for
4facilities federally defined as Institutions for Mental
5Disease. These rules shall recognize the unique nature of
6individuals with chronic mental health conditions, shall
7include minimum requirements for specialized clinical staff,
8including clinical social workers, psychiatrists,
9psychologists, and direct care staff set forth in paragraphs
10(4) through (6) and any other specialized staff which may be
11utilized and deemed necessary to count toward staffing ratios.
12    Within 120 days of the effective date of this amendatory
13Act of the 97th General Assembly, the Department shall
14promulgate rules specific to the staffing requirements for
15facilities licensed under the Specialized Mental Health
16Rehabilitation Act of 2013. These rules shall recognize the
17unique nature of individuals with chronic mental health
18conditions, shall include minimum requirements for specialized
19clinical staff, including clinical social workers,
20psychiatrists, psychologists, and direct care staff set forth
21in paragraphs (4) through (6) and any other specialized staff
22which may be utilized and deemed necessary to count toward
23staffing ratios.
24    (b) (Blank). Beginning January 1, 2011, and thereafter,
25light intermediate care shall be staffed at the same staffing
26ratio as intermediate care.



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1    (b-5) For purposes of the minimum staffing ratios in this
2Section, all residents shall be classified as requiring either
3skilled care or intermediate care.
4    As used in this subsection:
5    "Intermediate care" means basic nursing care and other
6restorative services under periodic medical direction.
7    "Skilled care" means skilled nursing care, continuous
8skilled nursing observations, restorative nursing, and other
9services under professional direction with frequent medical
11    (c) Facilities shall notify the Department within 60 days
12after the effective date of this amendatory Act of the 96th
13General Assembly, in a form and manner prescribed by the
14Department, of the staffing ratios in effect on the effective
15date of this amendatory Act of the 96th General Assembly for
16both intermediate and skilled care and the number of residents
17receiving each level of care.
18    (d)(1) (Blank). Effective July 1, 2010, for each resident
19needing skilled care, a minimum staffing ratio of 2.5 hours of
20nursing and personal care each day must be provided; for each
21resident needing intermediate care, 1.7 hours of nursing and
22personal care each day must be provided.
23    (2) (Blank). Effective January 1, 2011, the minimum
24staffing ratios shall be increased to 2.7 hours of nursing and
25personal care each day for a resident needing skilled care and
261.9 hours of nursing and personal care each day for a resident



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1needing intermediate care.
2    (3) (Blank). Effective January 1, 2012, the minimum
3staffing ratios shall be increased to 3.0 hours of nursing and
4personal care each day for a resident needing skilled care and
52.1 hours of nursing and personal care each day for a resident
6needing intermediate care.
7    (4) (Blank). Effective January 1, 2013, the minimum
8staffing ratios shall be increased to 3.4 hours of nursing and
9personal care each day for a resident needing skilled care and
102.3 hours of nursing and personal care each day for a resident
11needing intermediate care.
12    (5) Effective January 1, 2014, the minimum staffing ratios
13shall be increased to 3.8 hours of nursing and personal care
14each day for a resident needing skilled care and 2.5 hours of
15nursing and personal care each day for a resident needing
16intermediate care.
17    (e) Ninety days after the effective date of this amendatory
18Act of the 97th General Assembly, a minimum of 25% of nursing
19and personal care time shall be provided by licensed nurses,
20with at least 10% of nursing and personal care time provided by
21registered nurses. These minimum requirements shall remain in
22effect until an acuity based registered nurse requirement is
23promulgated by rule concurrent with the adoption of the
24Resource Utilization Group classification-based payment
25methodology, as provided in Section 5-5.2 of the Illinois
26Public Aid Code. Registered nurses and licensed practical



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1nurses employed by a facility in excess of these requirements
2may be used to satisfy the remaining 75% of the nursing and
3personal care time requirements. Notwithstanding this
4subsection, no staffing requirement in statute in effect on the
5effective date of this amendatory Act of the 97th General
6Assembly shall be reduced on account of this subsection.
7    (f) The Department shall adopt rules on or before January
81, 2020 establishing a system for determining compliance with
9minimum direct care staffing standards and the requirements of
1077 Ill. Adm. Code 300.1230. Compliance shall be determined at
11least quarterly using the Centers for Medicare and Medicaid
12Services' payroll-based journal and the facility's census and
13payroll data, which shall be obtained quarterly by the
14Department. The Department shall, at minimum, use the quarterly
15payroll-based journal and census and payroll data to calculate
16the number of hours provided per resident per day and compare
17this ratio to the minimums required by this Section as impacted
18by a waiver of the percentage requirement under Section
193-303.1. The Department shall publish the data quarterly on its
21    In enforcing the minimum staffing ratios, the Department
22shall take into account that transitions between intermediate
23care and skilled care occur regularly.
24    (g) The Department shall adopt rules by January 1, 2020
25establishing monetary penalties for facilities not in
26compliance with minimum staffing standards under this Section.



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1No monetary penalty may be issued during the implementation
2period, which shall be July 1, 2020 through September 30, 2020.
3If a facility is found to be noncompliant during the
4implementation period, the Department shall provide a written
5notice identifying the staffing deficiency and require the
6facility to provide a sufficiently detailed correction plan to
7meet the statutory minimum staffing levels. Monetary penalties
8shall be imposed beginning no later than October 1, 2020 and
9quarterly thereafter and shall be based on the latest quarter
10for which the Department has data.
11    Monetary penalties shall be established based on a formula
12that calculates the cost of wages and benefits for the missing
13staff hours and shall be no less than twice the calculated cost
14of wages and benefits for the missing staff hours during the
15quarter. The penalty shall be imposed regardless of whether the
16facility has committed other violations of this Act during the
17same quarter. The penalty may not be waived; however, if the
18violation is not more than a 5% deviation of the required
19minimum staffing requirements, the Department shall have the
20discretion to determine the gravity of the violation and,
21taking into account mitigating and aggravating circumstances
22and facts, may reduce the penalty amount. Nothing in this
23Section precludes a facility from being given a high risk
24designation for failing to comply with this Section that, when
25cited with other violations of this Act, increases the
26otherwise applicable penalty.



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1    (h) A violation of the minimum staffing requirements under
2this Section is, at minimum, a Type "B" violation. In the event
3that the violation is not more than a 5% percent deviation of
4the required minimum staffing requirements, the Department
5shall have the discretion to determine the gravity of the
6violation and, taking into account mitigating and aggravating
7circumstances and facts, may assess a different type or class
8of violation.
9(Source: P.A. 97-689, eff. 6-14-12; 98-104, eff. 7-22-13.)
10    (210 ILCS 45/3-209)  (from Ch. 111 1/2, par. 4153-209)
11    Sec. 3-209. Required posting of information.
12    (a) Every facility shall conspicuously post for display in
13an area of its offices accessible to residents, employees, and
14visitors the following:
15        (1) Its current license;
16        (2) A description, provided by the Department, of
17    complaint procedures established under this Act and the
18    name, address, and telephone number of a person authorized
19    by the Department to receive complaints;
20        (3) A copy of any order pertaining to the facility
21    issued by the Department or a court; and
22        (4) A list of the material available for public
23    inspection under Section 3-210.
24    (b) A facility that has received a notice of violation for
25a violation of the minimum staffing requirements under Section



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13-202.05 shall display, for 6 months following the date that
2the notice of violation was issued, a notice stating in Calibri
3(body) font and 26-point type in black letters on an 8.5 by 11
4inch white paper the following:
5"Notice Dated: ...................
6This facility did not have enough staff to meet the minimum
7staffing ratios for facility residents during the period from
8........ to ....... Posted at the direction of the Illinois
9Department of Public Health."
10The notice must be posted, at a minimum, at all publicly used
11exterior entryways into the facility, inside the main entrance
12lobby, and next to any registration desk for easily accessible
13viewing. The notice must also be posted on the main page of the
14facility's website. The Department shall have the discretion to
15determine the gravity of any violation and, taking into account
16mitigating and aggravating circumstances and facts, may reduce
17the requirement of, and amount of time for, posting the notice.
18(Source: P.A. 81-1349.)
19    (210 ILCS 45/3-305.8 new)
20    Sec. 3-305.8. Database of nursing home quarterly reports
21and citations.
22    (a) The Department shall publish the quarterly reports of
23facilities in violation of this Act in an easily searchable,



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1comprehensive, and downloadable electronic database on the
2Department's website in language that is easily understood. The
3database shall include quarterly reports of all facilities that
4have violated this Act starting from 2005 and shall continue
5indefinitely. The database shall be in an electronic format
6with active hyperlinks to individual facility citations. The
7database shall be updated quarterly and shall be electronically
8searchable using a facility's name and address and the facility
9owner's name and address.
10    (b) In lieu of the database under subsection (a), the
11Department may publish the list mandated under Section 3-304 in
12an easily searchable, comprehensive, and downloadable
13electronic database on the Department's website in plain
14language. The database shall include the information from all
15such lists since 2005 and shall continue indefinitely. The
16database shall be in an electronic format with active
17hyperlinks to individual facility citations. The database
18shall be updated quarterly and shall be electronically
19searchable using a facility's name and address and the facility
20owner's name and address.
21    Section 99. Effective date. This Act takes effect upon
22becoming law.".