Senate Bill sb0596e1

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  1                      A bill to be entitled

  2         An act relating to long-term care; providing

  3         legislative findings and intent with respect to

  4         the needs of the state's elderly population;

  5         requiring the Agency for Health Care

  6         Administration and the Department of Elderly

  7         Affairs to submit a plan to the Governor and

  8         Legislature for reducing nursing-home-bed days

  9         funded under the Medicaid program; amending s.

10         408.034, F.S.; providing additional

11         requirements for the Agency for Health Care

12         Administration in determining the need for

13         additional nursing-facility beds; amending s.

14         409.912; requiring the Agency for Health Care

15         Administration to establish a nursing facility

16         preadmission screening program through an

17         interagency agreement with the Department of

18         Elderly Affairs; requiring an annual report to

19         the Legislature and the Office of

20         Long-Term-Care Policy; creating s. 430.041,

21         F.S.; establishing the Office of Long-Term-Care

22         Policy within the Department of Elderly

23         Affairs; requiring the office to make

24         recommendations for coordinating the services

25         provided by state agencies; providing for the

26         appointment of an advisory board to the Office

27         of Long-Term-Care Policy; specifying membership

28         in the advisory board; providing for

29         reimbursement of per diem and travel expenses

30         for members of the advisory board; requiring

31         that the office submit an annual report to the


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  1         Governor and Legislature; requiring assistance

  2         to the office by state agencies and

  3         universities; amending s. 430.204, F.S.;

  4         providing certain restrictions on

  5         community-care-for-the-elderly services;

  6         creating s. 430.7031, F.S.; requiring the

  7         Department of Elderly Affairs and the Agency

  8         for Health Care Administration to implement a

  9         nursing home transition program; providing

10         requirements for the program; amending ss.

11         409.908, 430.708, 641.386, F.S., relating to

12         reimbursement of Medicaid providers,

13         certificates of need, and agent licensing and

14         appointment; conforming cross-references to

15         changes made by the act; amending s. 400.0069,

16         F.S.; increasing the maximum membership of the

17         local long-term care ombudsman councils;

18         amending s. 400.0089, F.S.; requiring the State

19         Long-Term Care Ombudsman Council to publish

20         complaint information quarterly; amending s.

21         400.0091, F.S.; specifying training

22         requirements for employees of the Office of the

23         State Long-Term Care Ombudsman and its

24         volunteers; providing an effective date.

25

26  Be It Enacted by the Legislature of the State of Florida:

27

28         Section 1.  The Legislature finds that the State of

29  Florida does not have a comprehensive and effective strategy

30  for economically and efficiently meeting the long-term-care

31  needs of an increasingly elderly population; that multiple


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  1  state agencies have responsibilities for oversight, planning,

  2  and operation of long-term-care programs; that long-term care

  3  is provided by a complex array of public and private entities

  4  delivering services; that there has not been a focus on

  5  evaluation of innovative and pilot projects and expansion of

  6  pilot projects that are successful; that the provision of

  7  long-term-care services has not been approached holistically;

  8  and that the state does not have a mechanism for ensuring that

  9  long-term-care programs are effectively and efficiently

10  operated and coordinated to comply with the policies set out

11  in Florida Statutes. It is therefore the intent of the

12  Legislature to increase the rate of diversion of elderly

13  persons in need of long-term care to noninstitutional

14  alternatives; to increase coordination, evaluation, and

15  planning for the state's long-term-care system; to expand

16  successful pilot programs; and to establish a nursing facility

17  preadmission screening program.

18         Section 2.  (1)  Prior to December 1, 2002, the Agency

19  for Health Care Administration in consultation with the

20  Department of Elderly Affairs shall submit to the Governor,

21  the President of the Senate, and the Speaker of the House of

22  Representatives a plan to reduce the number of

23  nursing-home-bed days purchased by the state Medicaid program

24  and to replace such nursing home care with care provided in

25  less costly alternative settings.

26         (2)  The plan must include specific goals for reducing

27  Medicaid-funded bed days and recommend specific statutory and

28  operational changes necessary to achieve such reduction.

29         (3)  The plan must include an evaluation of the

30  cost-effectiveness and the relative strengths and weaknesses

31  of programs that serve as alternatives to nursing homes.


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  1         Section 3.  Section 408.034, Florida Statutes, is

  2  amended to read:

  3         408.034  Duties and responsibilities of agency;

  4  rules.--

  5         (1)  The agency is designated as the single state

  6  agency to issue, revoke, or deny certificates of need and to

  7  issue, revoke, or deny exemptions from certificate-of-need

  8  review in accordance with the district plans and present and

  9  future federal and state statutes.  The agency is designated

10  as the state health planning agency for purposes of federal

11  law.

12         (2)  In the exercise of its authority to issue licenses

13  to health care facilities and health service providers, as

14  provided under chapters 393, 395, and parts II and VI of

15  chapter 400, the agency may not issue a license to any health

16  care facility, health service provider, hospice, or part of a

17  health care facility which fails to receive a certificate of

18  need or an exemption for the licensed facility or service.

19         (3)  The agency shall establish, by rule, uniform need

20  methodologies for health services and health facilities. In

21  developing uniform need methodologies, the agency shall, at a

22  minimum, consider the demographic characteristics of the

23  population, the health status of the population, service use

24  patterns, standards and trends, geographic accessibility, and

25  market economics.

26         (4)  Prior to determining that there is a need for

27  additional community nursing-facility beds in any area of the

28  state, the agency shall determine that the need cannot be met

29  through the provision, enhancement, or expansion of home and

30  community-based services. In determining such need, the agency

31  shall examine nursing-home-placement patterns and demographic


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  1  patterns of persons entering nursing homes and the

  2  availability of and effectiveness of existing home-based and

  3  community-based service delivery systems at meeting the

  4  long-term-care needs of the population. The agency shall

  5  recommend to the Office of Long-Term-Care Policy changes that

  6  could be made to existing home-based and community-based

  7  delivery systems to lessen the need for additional

  8  nursing-facility beds.

  9         (5)(4)  The agency shall establish by rule a

10  nursing-home-bed-need methodology that reduces the community

11  nursing home bed need for the areas of the state where the

12  agency establishes pilot community diversion programs through

13  the Title XIX aging waiver program.

14         (6)(5)  The agency may adopt rules necessary to

15  implement ss. 408.031-408.045.

16         Section 4.  Present subsections (13) through (39) of

17  section 409.912, Florida Statutes, are redesignated as

18  subsections (14) through (40) and a new subsection (13) is

19  added to that section to read:

20         409.912  Cost-effective purchasing of health care.--The

21  agency shall purchase goods and services for Medicaid

22  recipients in the most cost-effective manner consistent with

23  the delivery of quality medical care.  The agency shall

24  maximize the use of prepaid per capita and prepaid aggregate

25  fixed-sum basis services when appropriate and other

26  alternative service delivery and reimbursement methodologies,

27  including competitive bidding pursuant to s. 287.057, designed

28  to facilitate the cost-effective purchase of a case-managed

29  continuum of care. The agency shall also require providers to

30  minimize the exposure of recipients to the need for acute

31  inpatient, custodial, and other institutional care and the


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  1  inappropriate or unnecessary use of high-cost services. The

  2  agency may establish prior authorization requirements for

  3  certain populations of Medicaid beneficiaries, certain drug

  4  classes, or particular drugs to prevent fraud, abuse, overuse,

  5  and possible dangerous drug interactions. The Pharmaceutical

  6  and Therapeutics Committee shall make recommendations to the

  7  agency on drugs for which prior authorization is required. The

  8  agency shall inform the Pharmaceutical and Therapeutics

  9  Committee of its decisions regarding drugs subject to prior

10  authorization.

11         (13)(a)  The agency shall operate the Comprehensive

12  Assessment and Review (CARES) nursing facility preadmission

13  screening program to ensure that Medicaid payment for nursing

14  facility care is made only for individuals whose conditions

15  require such care and to ensure that long-term-care services

16  are provided in the setting most appropriate to the needs of

17  the person and in the most economical manner possible. The

18  CARES program shall also ensure that individuals participating

19  in Medicaid home and community-based waiver programs meet

20  criteria for those programs, consistent with approved federal

21  waivers.

22         (b)  The agency shall operate the CARES program through

23  an interagency agreement with the Department of Elderly

24  Affairs.

25         (c)  Prior to making payment for nursing facility

26  services for a Medicaid recipient, the agency must verify that

27  the nursing facility preadmission screening program has

28  determined that the individual requires nursing facility care

29  and that the individual cannot be safely served in

30  community-based programs. The nursing facility preadmission

31  screening program shall refer a Medicaid recipient to a


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  1  community-based program if the individual could be safely

  2  served at a lower cost and the recipient chooses to

  3  participate in such program.

  4         (d)  By January 1 of each year, the agency shall submit

  5  a report to the Legislature and the Office of Long-Term-Care

  6  Policy describing the operations of the CARES program. The

  7  report must describe:

  8         1.  Rate of diversion to community alternative

  9  programs;

10         2.  CARES program staffing needs to achieve additional

11  diversions;

12         3.  Reasons the program is unable to place individuals

13  in less restrictive settings when such individuals desired

14  such services and could have been served in such settings;

15         4.  Barriers to appropriate placement, including

16  barriers due to policies or operations of other agencies or

17  state-funded programs; and

18         5.  Statutory changes necessary to ensure that

19  individuals in need of long-term-care services receive care in

20  the least-restrictive environment.

21         Section 5.  Section 430.041, Florida Statutes, is

22  created to read:

23         430.041  Office of Long-Term-Care Policy.--

24         (1)  There is established in the Department of Elderly

25  Affairs the Office of Long-Term-Care Policy to evaluate the

26  state's long-term-care service delivery system and make

27  recommendations to increase the availability and the use of

28  noninstitutional settings to provide care to the elderly and

29  ensure coordination among the agencies responsible for the

30  long-term-care continuum.

31


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  1         (2)  The purpose of the Office of Long-Term-Care Policy

  2  is to:

  3         (a)  Ensure close communication and coordination among

  4  state agencies involved in developing and administering a more

  5  efficient and coordinated long-term-care service delivery

  6  system in this state;

  7         (b)  Identify duplication and unnecessary service

  8  provision in the long-term-care system and make

  9  recommendations to decrease inappropriate service provision;

10         (c)  Review current programs providing long-term-care

11  services to determine whether the programs are cost effective,

12  of high quality, and operating efficiently and make

13  recommendations to increase consistency and effectiveness in

14  the state's long-term-care programs;

15         (d)  Develop strategies for promoting and implementing

16  cost-effective home and community-based services as an

17  alternative to institutional care which coordinate and

18  integrate the continuum of care needs of the elderly; and

19         (e)  Assist the Office of Long-Term-Care Policy

20  Advisory Council as necessary to help implement this section.

21         (3)  The Director of the Office of Long-Term-Care

22  Policy shall be appointed by, and serve at the pleasure of,

23  the Governor. The director shall report to, and be under the

24  general supervision of, the Secretary of Elderly Affairs and

25  shall not be subject to supervision by any other employee of

26  the department.

27         (4)  The Office of Long-Term-Care Policy shall have an

28  advisory council, whose chair shall be the Director of the

29  Office of Long-Term-Care Policy. The purposes of the advisory

30  council are to provide assistance and direction to the office

31


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  1  and to ensure that the appropriate state agencies are properly

  2  implementing recommendations from the office.

  3         (a)  The advisory council shall consist of:

  4         1.  A member of the Senate, appointed by the President

  5  of the Senate;

  6         2.  A member of the House of Representatives, appointed

  7  by the Speaker of the House of Representatives;

  8         3.  The Director of the Office of Long-Term-Care

  9  Policy;

10         4.  The Secretary of Health Care Administration;

11         5.  The Secretary of Elderly Affairs;

12         6.  The Secretary of Children and Family Services;

13         7.  The Secretary of Health;

14         8.  The Executive Director of the Department of

15  Veterans' Affairs;

16         9.  A representative of the Florida Association of Area

17  Agencies on Aging, appointed by the Governor;

18         10.  A representative of the Florida Association of

19  Aging Service Providers, appointed by the Governor;

20         11.  A representative of the Florida Association of

21  Homes for the Aging, appointed by the Governor; and

22         12.  Two representatives of people using long-term-care

23  services, appointed by the Governor from groups representing

24  elderly persons.

25         (b)  Members shall serve without compensation, but are

26  entitled to receive reimbursement for travel and per diem as

27  provided in s. 112.061.

28         (c)  The advisory council shall meet at the call of its

29  chair or at the request of a majority of its members. During

30  its first year of existence, the advisory council shall meet

31  at least monthly.


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  1         (d)  Members of the advisory council appointed by the

  2  Governor shall serve at the pleasure of the Governor and shall

  3  be appointed to 4-year staggered terms in accordance with s.

  4  20.052.

  5         (5)(a)  The Department of Elderly Affairs shall provide

  6  administrative support and services to the Office of

  7  Long-Term-Care Policy.

  8         (b)  The office shall call upon appropriate agencies of

  9  state government, including the centers on aging in the State

10  University System, for assistance needed in discharging its

11  duties.

12         (c)  Each state agency represented on the Office of

13  Long-Term-Care Policy Advisory Council shall make at least one

14  employee available to work with the Office of Long-Term-Care

15  Policy. All state agencies and universities shall assist the

16  office in carrying out its responsibilities prescribed by this

17  section.

18         (d)  Each state agency shall pay from its own funds any

19  expenses related to its support of the Office of

20  Long-Term-Care Policy and its participation on the advisory

21  council. The Department of Elderly Affairs shall be

22  responsible for expenses related to participation on the

23  advisory council by members appointed by the Governor.

24         (6)(a)  By December 1, 2002, the office shall submit to

25  the advisory council a preliminary report of its findings and

26  recommendations on improving the long-term-care continuum in

27  this state. The report shall contain recommendations and

28  implementation proposals for policy changes, as well as

29  legislative and funding recommendations that will make the

30  system more effective and efficient. The report shall contain

31  a specific plan for accomplishing the recommendations and


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  1  proposals. Thereafter, the office shall revise and update the

  2  report annually and resubmit it to the advisory council for

  3  review and comments by November 1 of each year.

  4         (b)  The advisory council shall review and recommend

  5  any suggested changes to the preliminary report, and each

  6  subsequent annual update of the report, within 30 days after

  7  the receipt of the preliminary report. Suggested revisions,

  8  additions, or deletions shall be made to the Director of the

  9  Office of Long-Term-Care Policy.

10         (c)  The office shall submit its final report, and each

11  subsequent annual update of the report, to the Governor and

12  the Legislature within 30 days after the receipt of any

13  revisions, additions, or deletions suggested by the advisory

14  council, or after the time such comments are due to the

15  office.

16         Section 6.  Present subsections (7), (8), and (9) of

17  section 430.204, Florida Statutes, are renumbered as

18  subsections (8), (9), and (10), respectively, and a new

19  subsection (7) is added to that section, to read:

20         430.204  Community-care-for-the-elderly core services;

21  departmental powers and duties.--

22         (7)  In no case shall community-care-for-the-elderly

23  services be provided for longer than 60 days if the individual

24  does not complete the application process for establishing

25  eligibility under the Florida Medicaid program.

26         Section 7.  Section 430.7031, Florida Statutes, is

27  created to read:

28         430.7031  Nursing home transition program.--The

29  department and the Agency for Health Care Administration:

30

31


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  1         (1)  Shall implement a system of care designed to

  2  assist individuals residing in nursing homes to regain

  3  independence and to move to less-costly settings.

  4         (2)  Shall collaboratively work to identify long-stay

  5  nursing home residents who are able to move to community

  6  placements, and to provide case management and supportive

  7  services to such individuals while they are in nursing homes

  8  to assist such individuals in moving to less-expensive and

  9  less-restrictive settings.

10         (3)  Shall modify existing service delivery systems or

11  develop new service delivery systems to economically and

12  efficiently meet such individuals' care needs.

13         (4)  Shall offer such individuals priority placement

14  and services in all home-based and community-based care

15  programs, and shall ensure that funds are available to provide

16  services to individuals to whom services are offered.

17         (5)  May seek federal waivers necessary to administer

18  this section.

19         Section 8.  Subsection (4) of section 409.908, Florida

20  Statutes, is amended to read:

21         409.908  Reimbursement of Medicaid providers.--Subject

22  to specific appropriations, the agency shall reimburse

23  Medicaid providers, in accordance with state and federal law,

24  according to methodologies set forth in the rules of the

25  agency and in policy manuals and handbooks incorporated by

26  reference therein.  These methodologies may include fee

27  schedules, reimbursement methods based on cost reporting,

28  negotiated fees, competitive bidding pursuant to s. 287.057,

29  and other mechanisms the agency considers efficient and

30  effective for purchasing services or goods on behalf of

31  recipients.  Payment for Medicaid compensable services made on


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  1  behalf of Medicaid eligible persons is subject to the

  2  availability of moneys and any limitations or directions

  3  provided for in the General Appropriations Act or chapter 216.

  4  Further, nothing in this section shall be construed to prevent

  5  or limit the agency from adjusting fees, reimbursement rates,

  6  lengths of stay, number of visits, or number of services, or

  7  making any other adjustments necessary to comply with the

  8  availability of moneys and any limitations or directions

  9  provided for in the General Appropriations Act, provided the

10  adjustment is consistent with legislative intent.

11         (4)  Subject to any limitations or directions provided

12  for in the General Appropriations Act, alternative health

13  plans, health maintenance organizations, and prepaid health

14  plans shall be reimbursed a fixed, prepaid amount negotiated,

15  or competitively bid pursuant to s. 287.057, by the agency and

16  prospectively paid to the provider monthly for each Medicaid

17  recipient enrolled.  The amount may not exceed the average

18  amount the agency determines it would have paid, based on

19  claims experience, for recipients in the same or similar

20  category of eligibility.  The agency shall calculate

21  capitation rates on a regional basis and, beginning September

22  1, 1995, shall include age-band differentials in such

23  calculations. Effective July 1, 2001, the cost of exempting

24  statutory teaching hospitals, specialty hospitals, and

25  community hospital education program hospitals from

26  reimbursement ceilings and the cost of special Medicaid

27  payments shall not be included in premiums paid to health

28  maintenance organizations or prepaid health care plans. Each

29  rate semester, the agency shall calculate and publish a

30  Medicaid hospital rate schedule that does not reflect either

31  special Medicaid payments or the elimination of rate


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  1  reimbursement ceilings, to be used by hospitals and Medicaid

  2  health maintenance organizations, in order to determine the

  3  Medicaid rate referred to in ss. 409.912(17) 409.912(16),

  4  409.9128(5), and 641.513(6).

  5         Section 9.  Section 430.708, Florida Statutes, is

  6  amended to read:

  7         430.708  Certificate of need.--To ensure that Medicaid

  8  community diversion pilot projects result in a reduction in

  9  the projected average monthly nursing home caseload, the

10  agency shall, in accordance with the provisions of s.

11  408.034(5) s. 408.034(4):

12         (1)  Reduce the projected nursing home bed need in each

13  certificate-of-need batching cycle in the community diversion

14  pilot project areas.

15         (2)  Reduce the conditions imposed on existing nursing

16  homes or those to be constructed, in accordance with the

17  number of projected community diversion slots.

18         (3)  Adopt rules to reduce the number of beds in

19  Medicaid-participating nursing homes eligible for Medicaid,

20  through a Medicaid-selective contracting process or some other

21  appropriate method.

22         (4)  Determine the feasibility of increasing the

23  nursing home occupancy threshold used in determining nursing

24  home bed needs under the certificate-of-need process.

25         Section 10.  Subsection (4) of section 641.386, Florida

26  Statutes, is amended to read:

27         641.386  Agent licensing and appointment required;

28  exceptions.--

29         (4)  All agents and health maintenance organizations

30  shall comply with and be subject to the applicable provisions

31  of ss. 641.309 and 409.912(19) 409.912(18), and all companies


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  1  and entities appointing agents shall comply with s. 626.451,

  2  when marketing for any health maintenance organization

  3  licensed pursuant to this part, including those organizations

  4  under contract with the Agency for Health Care Administration

  5  to provide health care services to Medicaid recipients or any

  6  private entity providing health care services to Medicaid

  7  recipients pursuant to a prepaid health plan contract with the

  8  Agency for Health Care Administration.

  9         Section 11.  Subsection (4) of section 400.0069,

10  Florida Statutes, is amended to read:

11         400.0069  Local long-term care ombudsman councils;

12  duties; membership.--

13         (4)  Each local ombudsman council shall be composed of

14  no less than 15 members and no more than 40 30 members from

15  the local planning and service area, to include the following:

16  one medical or osteopathic physician whose practice includes

17  or has included a substantial number of geriatric patients and

18  who may have limited practice in a long-term care facility;

19  one registered nurse who has geriatric experience, if

20  possible; one licensed pharmacist; one registered dietitian;

21  at least six nursing home residents or representative consumer

22  advocates for nursing home residents; at least three residents

23  of assisted living facilities or adult family-care homes or

24  three representative consumer advocates for long-term care

25  facility residents; one attorney; and one professional social

26  worker.  In no case shall the medical director of a long-term

27  care facility or an employee of the Agency for Health Care

28  Administration, the Department of Children and Family

29  Services, or the Department of Elderly Affairs serve as a

30  member or as an ex officio member of a council.  Each member

31  of the council shall certify that neither the council member


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  1  nor any member of the council member's immediate family has

  2  any conflict of interest pursuant to subsection (10).  Local

  3  ombudsman councils are encouraged to recruit council members

  4  who are 60 years of age or older.

  5         Section 12.  Section 400.0089, Florida Statutes, is

  6  amended to read:

  7         400.0089  Agency reports.--The State Long-Term Care

  8  Ombudsman Council, shall, in cooperation with the Department

  9  of Elderly Affairs, maintain a statewide uniform reporting

10  system to collect and analyze data relating to complaints and

11  conditions in long-term care facilities and to residents, for

12  the purpose of identifying and resolving significant problems.

13  The council shall submit such data as part of its annual

14  report required pursuant to s. 400.0067(2)(g) to the Agency

15  for Health Care Administration, the Department of Children and

16  Family Services, the Florida Statewide Advocacy Council, the

17  Advocacy Center for Persons with Disabilities, the

18  Commissioner for the United States Administration on Aging,

19  the National Ombudsman Resource Center, and any other state or

20  federal entities that the ombudsman determines appropriate.

21  The State Long-Term Care Ombudsman Council shall publish

22  quarterly and make readily available information pertaining to

23  the number and types of complaints received by the long-term

24  care ombudsman program.

25         Section 13.  Section 400.0091, Florida Statutes, is

26  amended to read:

27         400.0091  Training.--The ombudsman shall provide

28  appropriate training to all employees of the Office of State

29  Long-Term Care Ombudsman and to the state and local long-term

30  care ombudsman councils, including all unpaid volunteers. All

31  volunteers and appropriate employees of the Office of the


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  1  State Long-Term Care Ombudsman must be given a minimum of 20

  2  hours of training upon employment or enrollment as a volunteer

  3  and 10 hours of continuing education annually thereafter.

  4  Training must cover, at a minimum, guardianships and powers of

  5  attorney, medication administration, care and medication of

  6  residents with dementia and Alzheimer's disease, accounting

  7  for residents' funds, discharge rights and responsibilities,

  8  and cultural sensitivity. No employee, officer, or

  9  representative of the office or of the state or local

10  long-term care ombudsman councils, other than the ombudsman,

11  may carry out any authorized ombudsman duty or responsibility

12  unless the person has received the training required by this

13  section and has been approved by the ombudsman as qualified to

14  carry out ombudsman activities on behalf of the office or the

15  state or local long-term care ombudsman councils.

16         Section 14.  This act shall take effect July 1, 2002.

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                                  17

CODING: Words stricken are deletions; words underlined are additions.