2014 -- H 7413

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LC004289

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

____________

A N   A C T

RELATING TO CRIMINAL PROCEDURE

     

     Introduced By: Representatives Naughton, Fellela, Shekarchi, and Diaz

     Date Introduced: February 12, 2014

     Referred To: House Finance

     (Attorney General)

It is enacted by the General Assembly as follows:

1

     SECTION 1. Title 12 of the General Laws entitled "CRIMINAL PROCEDURE" is

2

hereby amended by adding thereto the following chapter:

3

CHAPTER 1.6

4

NATIONAL CRIMINAL RECORDS CHECK SYSTEM

5

     12-1.6-1. Automated fingerprint identification system database. -- The department of

6

attorney general may establish and maintain an automated fingerprint identification system

7

database that would allow the department to store and maintain all fingerprints submitted in

8

accordance with the national criminal records check system. The automated fingerprint

9

identification system database would provide for an automatic notification if, and when, a

10

subsequent criminal arrest fingerprint card is submitted to the system that matches a set of

11

fingerprints previously submitted in accordance with a national criminal records check. If the

12

aforementioned arrest results in a conviction, the department shall immediately notify those

13

individuals and entities with which that individual is associated and who are required to be

14

notified of disqualifying information concerning national criminal records checks as provided in

15

chapters 17, 17.4, 17.7.1 of title 23 or § 23-1-52. The information in the database established

16

under this section is confidential and not subject to disclosure under chapter 38-2.

17

     12-1.6-2. Long-term healthcare workers. -- The department of attorney general shall

18

maintain an electronic, web-based system to assist facilities, licensed under chapters 17, 17.4,

19

17.7.1 of title 23 or § 23-1-52, required to check relevant registries and conduct national criminal

 

1

records checks of routine contact patient employees. The department of attorney general shall

2

provide for an automated notice, as authorized in § 12-1.6-1, to those facilities if a routine contact

3

patient employee is subsequently convicted of a disqualifying offense, as described in the relevant

4

licensing statute. The department of attorney general may charge a facility a one-time, set-up fee

5

of up to one hundred dollars ($100) for access to the electronic web-based system under this

6

section.

7

     12-1.6-3. Immunity from liability. -- The department of attorney general; the

8

department of health; or an employer who disqualifies an applicant from employment or

9

continued employment; on the basis of a disqualification notice as described in § 12-1.6-2, or of a

10

national criminal records check relating to disqualifying information, shall not be liable for civil

11

damages or subject to any claim, demand, cause of action, or proceeding of any nature as a result

12

of the disqualification.

13

     12-1.6-4. Rules and regulations. -- The department of attorney general may promulgate

14

rules and regulations to carry out the intent of this chapter.

15

     SECTION 2. Section 23-1-52 of the General Laws in Chapter 23-1 entitled "Department

16

of Health" is hereby amended to read as follows:

17

     23-1-52. Adult day care program licensure. -- (a) The director is authorized and

18

directed to establish a program for the licensure of adult day care programs. "Adult day care

19

program" shall mean a comprehensive, nonresidential program designed to address the biological,

20

psychological, and social needs of adults through individual plans of care that incorporate, as

21

needed, a variety of health, social, and related support services in a protective setting. The

22

director is further authorized to promulgate regulations as he or she deems necessary to

23

implement these provisions.

24

     (b) Any person seeking employment in any adult day care facility licensed herein and

25

having routine contact with an adult day care client or having access to such a client’s belongings

26

or funds shall undergo a national criminal records check that shall include fingerprints submitted

27

to the Federal Bureau of Investigation (FBI) by the bureau of criminal identification of the

28

department of attorney general. The national criminal records check shall be processed prior to, or

29

within one week of, employment. All persons who, as of September 30, 2014, are already

30

employed by an adult day care facility and all persons who, as of such date, already provide

31

services under this section shall be exempted from the requirements of this section for purposes

32

of their current employment only.

33

     (1) The director may, by rule, identify those positions requiring national criminal records

34

checks. The employee, through the employer, shall apply to the bureau of criminal identification

 

LC004289 - Page 2 of 12

1

of the department of attorney general for a national criminal records check. Upon the discovery of

2

any disqualifying information as defined in § 23-1-52(c), and in accordance with rules

3

promulgated by the director, the bureau of criminal identification of the department of attorney

4

general shall inform the applicant in writing, of the nature of the disqualifying information; and,

5

without disclosing the nature of the disqualifying information, shall notify the employer, in

6

writing, that disqualifying information has been discovered.

7

     (2) An employee against whom disqualifying information has been found may provide a

8

copy of the national criminal records check to the employer. The employer shall make a judgment

9

regarding the continued employment of the employee.

10

     (3) In those situations in which no disqualifying information has been found, the bureau

11

of criminal identification of the department of attorney general shall inform the applicant and the

12

employer, in writing, of this fact.

13

     (4) The employer shall maintain on file, subject to inspection by the department of health,

14

evidence that statewide criminal records checks have been initiated on all employees seeking

15

employment between January 1, 2008, and September 30, 2014, and the results of the checks. The

16

employer shall maintain on file, subject to inspection by the department, evidence that national

17

criminal records checks have been initiated on all employees seeking employment on or after

18

October 1, 2014, and the results of those checks. Failure to maintain that evidence may be

19

grounds to revoke the license or registration of the employer.

20

     (5) The employee shall be responsible for the cost of conducting the national criminal

21

records check through the bureau of criminal identification of the department of attorney general.

22

     (c) Information produced by a national criminal records check pertaining to conviction

23

for the following crimes will result in a letter to the employee and employer disqualifying the

24

applicant from employment: murder, voluntary manslaughter, involuntary manslaughter, first-

25

degree sexual assault, second-degree sexual assault, third-degree sexual assault, assault on

26

persons sixty (60) years of age or older, assault with intent to commit specified felonies (murder,

27

robbery, rape, burglary, or the abominable and detestable crimes against nature), felony assault,

28

patient abuse, neglect or mistreatment of patients, burglary, first-degree arson, robbery, felony

29

drug offenses, felony obtaining money under false pretenses, felony embezzlement, abuse,

30

neglect and/or exploitation of adults with severe impairments, exploitation of elders, felony

31

larceny, or felony banking law violations, or a crime under section 1128(a) of the Social Security

32

Act (42 U.S.C. §1320a-7(a)). An employee against whom disqualifying information has been

33

found may provide a copy of the national criminal records check to the employer who shall make

34

a judgment regarding the continued employment of the employee. For purposes of this

 

LC004289 - Page 3 of 12

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subsection, "conviction" means, in addition to judgments of conviction entered by a court

2

subsequent to a finding of guilty or a plea of guilty, those instances where the defendant has

3

entered a plea of nolo contendere and has received a sentence of probation and those instances

4

where a defendant has entered into a deferred sentence agreement with the attorney general.

5

     SECTION 3. Sections 23-17-34 and 23-17-37 of the General Laws in Chapter 23-17

6

entitled "Licensing of Health Care Facilities" are hereby amended to read as follows:

7

     23-17-34. Criminal records review - Nursing facilities - Home nursing care

8

providers and home care providers. -- (a) Any person seeking employment in a nursing facility,

9

a home nursing care provider, hospice provider, or a home care provider which who is or is

10

required to be, licensed, registered, or certified with the department of health if that employment

11

involves routine contact with a patient or resident without the presence of other employees, shall

12

undergo a national criminal background records check to which shall include fingerprints

13

submitted to the Federal Bureau of Investigation (FBI) by the bureau of criminal identification of

14

the department of attorney general. The national criminal records check shall be initiated prior to,

15

or within one week of, employment. All employees hired prior to the enactment of this section

16

shall be exempted from the requirements of this section. All persons who, as of September, 30,

17

2014, are already employed by a covered facility or provider and all persons who, as of such date,

18

already provide services under this chapter, shall be exempted from the requirements of this

19

section for purposes of their current employment only.

20

     (b) The director of the department of health may, by rule, identify those positions

21

requiring criminal background records checks. The identified employee, through the employer,

22

shall apply to the bureau of criminal identification of the state police or local police department of

23

attorney general for a statewide national criminal records check. Fingerprinting shall not be

24

required. Upon the discovery of any disqualifying information as defined in section §23-17-37

25

and, in accordance with the rule promulgated by the director of health, the bureau of criminal

26

identification of the state police or the local police department of attorney general will inform the

27

applicant, in writing, of the nature of the disqualifying information; and, without disclosing the

28

nature of the disqualifying information, will notify the employer, in writing, that disqualifying

29

information has been discovered.

30

     (c) An employee against whom disqualifying information has been found may provide

31

request that a copy of the national criminal records check background report be sent to the

32

employer who shall make a judgment regarding the continued employment of the employee.

33

     (d) In those situations in which no disqualifying information has been found, the bureau

34

of criminal identification of the state police or the local police department of attorney general

 

LC004289 - Page 4 of 12

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shall inform the applicant and the employer, in writing, of this fact.

2

     (e) The employer shall maintain on file, subject to inspection by the department of health,

3

evidence that statewide criminal records checks have been initiated on all employees seeking

4

employment after between October 1, 1991, and September 30, 2014, and the results of the

5

checks. Failure to maintain that evidence would be grounds to revoke the license or registration of

6

the employer. The employer shall maintain on file, subject to inspection by the department of

7

health, evidence that national criminal records checks have been initiated on all employees

8

seeking employment on or after October 1, 2014, and the results of those checks.

9

      (f) It shall be the responsibility of the bureau of criminal identification of the state police

10

or the local police department to conduct the criminal records check to the applicant for

11

employment without charge to either the employee or the employer. The employee shall be

12

responsible for the cost of conducting the national criminal records check through the bureau of

13

criminal identification of the department of attorney general.

14

     23-17-37. Disqualifying information. -- (a) Information produced by a national criminal

15

records review check pertaining to conviction, for the following crimes will result in a letter to

16

the employee and employer disqualifying the applicant from employment: murder, voluntary

17

manslaughter, involuntary manslaughter, first-degree sexual assault, second-degree sexual

18

assault, third-degree sexual assault, assault on persons sixty (60) years of age or older, assault

19

with intent to commit specified felonies (murder, robbery, rape, burglary, or the abominable and

20

detestable crime against nature) felony assault, patient abuse, neglect or mistreatment of patients,

21

burglary, first-degree arson, robbery, felony drug offenses, felony larceny, or felony banking law

22

violations, felony obtaining money under false pretenses, felony embezzlement, abuse, neglect

23

and/or exploitation of adults with severe impairments, exploitation of elders, or a crime under

24

section 1128(a) of the Social Security Act (42 U.S.C. §1320a-7(a)). An employee against whom

25

disqualifying information has been found may request that provide a copy of the national criminal

26

background report be sent records check to the employer who shall make a judgment regarding

27

the continued employment of the employee.

28

     (b) For purposes of this section, "conviction" means, in addition to judgments of

29

conviction entered by a court subsequent to a finding of guilty or a plea of guilty, those instances

30

where the defendant has entered a plea of nolo contendere and has received a sentence of

31

probation and those instances where a defendant has entered into a deferred sentence agreement

32

with the attorney general.

33

     SECTION 4. Chapter 23-17 of the General Laws entitled "Licensing of Health Care

34

Facilities" is hereby amended by adding thereto the following section:

 

LC004289 - Page 5 of 12

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     23-17-62. Criminal records review - long-term care hospital. -- (a) For the purposes of

2

this section, a "long-term care hospital" shall mean a facility as described in 42 U.S.C. 1395 §

3

ww(d)(1)(iv), that receives payment for inpatient services it provides to Medicare beneficiaries

4

pursuant to 42 U.S.C. § 1395ww(m).

5

     (b) Any person seeking employment in any long-term care hospital, having routine

6

contact with a long-term care hospital patient or having access to such a patient’s belongings or

7

funds, shall undergo a national criminal records check that shall include fingerprints submitted to

8

the Federal Bureau of Investigation (FBI) by the bureau of criminal identification of the

9

department of attorney general. The national criminal records check shall be processed prior to, or

10

within one week of, employment. All persons who, as of September 30, 2014, are already

11

employed by a long-term care hospital and all persons who, as of such date, already provide

12

services under this section, shall be exempted from the requirements of this section for purposes

13

of their current employment only.

14

     (1) The director may, by rule, identify those positions requiring national criminal records

15

checks. The employee, through the employer, shall apply to the bureau of criminal identification

16

of the department of attorney general for a national criminal records check. Upon the discovery of

17

any disqualifying information, as defined in § 23-17-62(c), and in accordance with the rule

18

promulgated by the director, the bureau of criminal identification of the department of attorney

19

general shall inform the applicant, in writing, of the nature of the disqualifying information; and,

20

without disclosing the nature of the disqualifying information, shall notify the employer, in

21

writing, that disqualifying information has been discovered.

22

     (2) An employee against whom disqualifying information has been found may provide a

23

copy of the national criminal records report to the employer. The employer shall make a judgment

24

regarding the continued employment of the employee.

25

     (3) In those situations in which no disqualifying information has been found, the bureau

26

of criminal identification of the department of attorney general shall inform the applicant and the

27

employer, in writing, of this fact.

28

     (4) The employer shall maintain on file, subject to inspection by the department, evidence

29

that statewide criminal records checks have been initiated on all employees seeking employment

30

between October 1, 1991, and September 30, 2014, and the results of the checks. The employer

31

shall maintain on file, subject to inspection by the department, evidence that national criminal

32

records checks have been initiated on all employees seeking employment on or after October 1,

33

2014, and the results of those checks. Failure to maintain that evidence would be grounds to

34

revoke the license or registration of the employer.

 

LC004289 - Page 6 of 12

1

     (5) The employee shall be responsible for the cost of conducting the national criminal

2

records check through the bureau of criminal identification of the department of attorney general.

3

     (c) Information produced by a national criminal records check pertaining to conviction,

4

for the following crimes will result in a letter to the employee and employer disqualifying the

5

applicant from employment: murder, voluntary manslaughter, involuntary manslaughter, first-

6

degree sexual assault, second-degree sexual assault, third-degree sexual assault, assault on

7

persons sixty (60) years of age or older, assault with intent to commit specified felonies (murder,

8

robbery, rape, burglary, or the abominable and detestable crimes against nature), felony assault,

9

patient abuse, neglect or mistreatment of patients, burglary, first-degree arson, robbery, felony

10

drug offenses, felony obtaining money under false pretenses, felony embezzlement, abuse,

11

neglect and/or exploitation of adults with severe impairments, exploitation of elders, felony

12

larceny, or felony banking law violations, or a crime under section 1128(a) of the Social Security

13

Act (42 U.S.C. §1320a-7(a)). An employee against whom disqualifying information has been

14

found may provide a copy of the national criminal records check to the employer who shall make

15

a judgment regarding the continued employment of the employee. For purposes of this

16

subsection, “conviction” means, in addition to judgments of conviction entered by a court

17

subsequent to a finding of guilty or a plea of guilty, those instances where the defendant has

18

entered a plea of nolo contendere and has received a sentence of probation and those instances

19

where a defendant has entered into a deferred sentence agreement with the attorney general.

20

     SECTION 5. Sections 23-17.4-27 and 23-17.4-30 of the General Laws in Chapter 23-

21

17.4 entitled "Assisted Living Residence Licensing Act" are hereby amended to read as follows:

22

     23-17.4-27. Criminal records review. -- (a) Any person seeking employment in any

23

assisted living residence licensed under this act, and having routine contact with a resident or

24

having access to a resident's belongings or funds, shall undergo a national criminal background

25

records check to that shall include fingerprints submitted to the Federal Bureau of Investigation

26

(FBI) by the bureau of criminal identification of the department of attorney general. The national

27

criminal records check shall be processed prior to or within one week of employment. All

28

employees hired prior to the enactment of this section shall be exempted from the requirements of

29

this section. All persons who, as of September 30, 2014, are already employed by an assisted

30

living residence and all persons who, as of such date, already provide services under this chapter,

31

shall be exempted from the requirements of this section for purposes of their current employment

32

only.

33

     (b) The director of the department of health may, by rule, identify those positions

34

requiring national criminal background records checks. The employee, through the employer,

 

LC004289 - Page 7 of 12

1

shall apply to the bureau of criminal identification of the state police or local police department of

2

attorney general for a statewide national criminal records check. Fingerprinting shall not be

3

required. Upon the discovery of any disqualifying information as defined in section §23-17.4-30,

4

and in accordance with the rule promulgated by the director of health, the bureau of criminal

5

identification of the state police or the local police department of attorney general will inform the

6

applicant in writing of the nature of the disqualifying information; and, without disclosing the

7

nature of the disqualifying information, will notify the employer in writing that disqualifying

8

information has been discovered.

9

     (c) An employee against whom disqualifying information has been found may request

10

that provide a copy of the national criminal background report be sent records check to the

11

employer. The administrator shall make a judgment regarding the continued employment of the

12

employee.

13

     (d) In those situations in which no disqualifying information has been found, the bureau

14

of criminal identification (BCI) of the state police or the local police department of attorney

15

general shall inform the applicant and the employer in writing of this fact.

16

     (e) The employer shall maintain on file, subject to inspection by the department of health,

17

evidence that statewide criminal records checks have been initiated on all employees seeking

18

employment after between October 1, 1991, and September 30, 2014, and the results of the

19

checks. The employer shall maintain on file, subject to inspection by the department of health,

20

evidence that national criminal records checks have been initiated on all employees seeking

21

employment on or after October 1, 2014, and the results of those checks. Failure to maintain that

22

evidence would be grounds to revoke the license or registration of the employer.

23

     (f) It shall be the responsibility of the bureau of criminal identification (BCI) of the state

24

police or the local police department to conduct the criminal records check to the applicant for

25

employment without charge to either the employee or employer. The employee shall be

26

responsible for the cost of conducting the national criminal records check through the bureau of

27

criminal identification of the department of attorney general.

28

     23-17.4-30. Disqualifying information. -- (a) Information produced by a national

29

criminal records review check pertaining to conviction, for the following crimes will result in a

30

letter to the employee and employer disqualifying the applicant from employment: murder,

31

voluntary manslaughter, involuntary manslaughter, first-degree sexual assault, second-degree

32

sexual assault, third-degree sexual assault, assault on persons sixty (60) years of age or older,

33

assault with intent to commit specified felonies (murder, robbery, rape, burglary, or the

34

abominable and detestable crime against nature) felony assault, patient abuse, neglect or

 

LC004289 - Page 8 of 12

1

mistreatment of patients, burglary, first-degree arson, robbery, felony drug offenses, felony

2

obtaining money under false pretenses, felony embezzlement, abuse, neglect and/or exploitation

3

of adults with severe impairments, exploitation of elders, felony larceny or felony banking law

4

violations. An employee against whom disqualifying information has been found may request

5

that provide a copy of the national criminal background report be sent records check to the

6

employer who shall make a judgment regarding the continued employment of the employee.

7

      (b) For purposes of this section, "conviction" means, in addition to judgments of

8

conviction entered by a court subsequent to a finding of guilty or a plea of guilty, those instances

9

where the defendant has entered a plea of nolo contendere and has received a sentence of

10

probation and those instances where a defendant has entered into a deferred sentence agreement

11

with the attorney general.

12

     SECTION 6. Sections 23-17.7.1-17 and 23-17.7.1-20 of the General Laws in Chapter 23-

13

17.7.1 entitled "Licensing of Nursing Service Agencies" are hereby amended to read as follows:

14

     23-17.7.1-17. Criminal records review. -- (a) Any person seeking employment in a

15

facility which who is or is required to be, licensed or registered with the department of health if

16

that employment involves routine contact with a patient or resident without the presence of other

17

employees, shall undergo a national criminal background records check, which that shall include

18

fingerprints submitted to the Federal Bureau of Investigation (FBI) by the bureau of criminal

19

identification of the department of attorney general. The national criminal records check shall be

20

initiated prior to, or within one week of, employment. All employees hired prior to the enactment

21

of this section shall be exempted from the requirements of this section. All persons who, as of

22

September 30, 2014, are already employed by a covered facility and all persons who, as of such

23

date, already provide services under this chapter, shall be exempt from the requirements of this

24

section for purposes of their current employment only.

25

     (b) The director of the department of health may, by rule, identify those positions

26

requiring national criminal background records checks. The employee, through the employer,

27

shall apply to the bureau of criminal identification of the state police or local police department of

28

attorney general for a statewide national criminal records check. Fingerprinting shall not be

29

required. Upon the discovery of any disqualifying information as defined in section §23-17.7.1-

30

20, and in accordance with the rule promulgated by the director of the department of health, the

31

bureau of criminal identification of the state police or the local police department of attorney

32

general will inform the applicant, in writing, of the nature of the disqualifying information; and,

33

without disclosing the nature of the disqualifying information, will notify the employer, in

34

writing, that disqualifying information has been discovered.

 

LC004289 - Page 9 of 12

1

     (c) An employee against whom disqualifying information under section §23-17.7.1-20(b)

2

has been found may request that provide a copy of the national criminal background report be

3

sent records check to the employer who shall make a judgment regarding the continued

4

employment of the employee.

5

     (d) In those situations in which no disqualifying information has been found, the bureau

6

of criminal identification of the state police or the local police department of attorney general

7

shall inform the applicant and the employer, in writing, of this fact.

8

     (e) The employer shall maintain on file, subject to inspection by the department of health,

9

evidence that criminal records checks have been initiated on all employees seeking employment

10

between October 1, 1991, and September 30, 2014, and the results of the checks. The employer

11

shall maintain on file, subject to inspection by the department of health, evidence that national

12

criminal records checks have been initiated on all employees seeking employment on or after

13

October 1, 2014, and the results of those checks. Failure to maintain that evidence would be

14

grounds to revoke the license or registration of the employer.

15

     (f) It shall be the responsibility of the bureau of criminal identification of the state police5

16

or the local police department to conduct the criminal records check to the applicant for

17

employment without charge to either the employee or the employer. The employee shall be

18

responsible for the cost of conducting the national criminal records check through the bureau of

19

criminal identification of the department of attorney general.

20

     23-17.7.1-20. Disqualifying information. -- (a) Information produced by a national

21

criminal records review check pertaining to conviction, for the following crimes will result in a

22

letter to the employee and employer disqualifying the applicant from the employment: murder,

23

voluntary manslaughter, involuntary manslaughter, first-degree sexual assault, second-degree

24

sexual assault, third-degree sexual assault, assault on persons sixty (60) years of age or older,

25

assault with intent to commit specified felonies (murder, robbery, rape, burglary, or the

26

abominable and detestable crime against nature), felony assault, patient abuse, neglect or

27

mistreatment of patients, first-degree arson, robbery, felony drug offenses, larceny, or felony

28

banking law violations felony obtaining money under false pretenses, felony embezzlement,

29

abuse, neglect, and/or exploitation of adults with severe impairments, exploitation of elders,

30

felony larceny, or felony banking law violations or a crime under section 1128(a) of the Social

31

Security Act (42 U.S.C. §1320a-7(a)).

32

     (b) Information produced by a national criminal records review check pertaining to

33

convictions for crimes other than those listed in subsection (a) of this section shall entitle, but not

34

obligate the employer, to decline to hire the applicant. An employee against whom conviction

 

LC004289 - Page 10 of 12

1

information related to this subsection has been found may request that provide a copy of the

2

national criminal background report be sent records check to the employer who shall make a

3

determination regarding the continued employment of the employee.

4

     (c) For purposes of this section "conviction" means, in addition to judgments of

5

conviction entered by a court subsequent to a finding of guilty or a plea of guilty, those instances

6

where the defendant has entered a plea of nolo contendere and has received a sentence of

7

probation and those instances where a defendant has entered into a deferred sentence agreement

8

with the attorney general.

9

     SECTION 7. Section 1 of this act shall take effect upon passage. Sections 2, 3, 3, 5 and 6

10

of this act shall take effect on September 30, 2014.

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LC004289

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LC004289 - Page 11 of 12

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO CRIMINAL PROCEDURE

***

1

     This act would expand the type of criminal records check required for persons applying

2

to be routine contact patient employees in a long-term facility or provider.

3

     Section 1 of this act would take effect upon passage. Sections 2, 3, 4, 5 and 6 would take

4

effect on September 30, 2014.

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LC004289

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LC004289 - Page 12 of 12