PRINTER'S NO.  334

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

310

Session of

2009

  

  

INTRODUCED BY GINGRICH, BEYER, CARROLL, FRANKEL, GEIST, GROVE, HENNESSEY, HESS, HORNAMAN, KAUFFMAN, KORTZ, MILLER, MOUL, PHILLIPS, PICKETT, RAPP, ROSS, SIPTROTH, SWANGER, VULAKOVICH AND WATSON, FEBRUARY 9, 2009

  

  

REFERRED TO COMMITTEE ON AGING AND OLDER ADULT SERVICES, FEBRUARY 9, 2009  

  

  

  

AN ACT

  

1

Establishing the Long-Term Care Quality Improvement Council; and

2

providing for a system for data collection, for benchmarking

3

and dissemination of long-term care provider quality

4

performance reports, for annual reports to the General

5

Assembly and for publication of reports for public use.

6

TABLE OF CONTENTS

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Chapter 1.  General Provisions

8

Section 101.  Short title.

9

Section 102.  Legislative findings.

10

Section 103.  Definitions.

11

Chapter 3.  Long-Term Care Quality Improvement Council

12

Section 301.  Establishment.

13

Section 302.  Powers and duties.

14

Section 303.  Commonwealth agency responsibilities.

15

Chapter 5.  Miscellaneous Provisions

16

Section 501.  Administration.

17

Section 502.  Repeals.

18

Section 503.  Effective date.

 


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The General Assembly of the Commonwealth of Pennsylvania

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hereby enacts as follows:

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CHAPTER 1

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 GENERAL PROVISIONS

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Section 101.  Short title.

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This act shall be known and may be cited as the Long-Term

7

Care Quality Improvement Act.

8

Section 102.  Legislative findings.

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The General Assembly finds and declares as follows:

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(1)  This Commonwealth has the third oldest population

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demographically of any state, with more than 1.9 million

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residents who are at least 65 years of age and will

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increasingly demand more intensive long-term care services.

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Currently, approximately 77,500 older Pennsylvanians reside

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in nursing facilities; approximately 53,000 reside in

16

personal care homes or assisted living residences; at least

17

20,000 Pennsylvanians reside in independent housing

18

environments; and thousands more receive long-term care and

19

services in their homes and in community settings.

20

(2)  For the forseeable future, the needs of

21

Pennsylvanians for long-term care will continue to increase

22

substantially and the peak post-World War II baby boom

23

population will reach retirement age beginning in 2010.

24

(3)  As this Commonwealth's population continues to age,

25

the number of impairments of daily living activities among

26

citizens requiring long-term care will also continue to

27

increase, thereby posing greater challenges to all providers

28

of long-term care.

29

(4)  The Commonwealth should respond to the demographic

30

and health care challenges it faces by becoming the nation's

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1

leader in providing and assuring high-quality long-term care

2

services.

3

(5)  While the enforcement of licensing requirements

4

through inspections and a system of reasonable and

5

proportionate sanctions is necessary to establish and

6

maintain minimum standards for long-term care in order to

7

promote excellence in long-term care, the focus of the

8

Commonwealth's efforts should be expanded to prioritize the

9

development of programs to continuously promote systemic

10

improvement in the quality of long-term care.

11

(6)  The establishment of a comprehensive consumer

12

information system that makes readily available comparative

13

information regarding long-term care providers, services

14

provided and a quantifiable and reliable performance

15

measurement system that links standards and modalities for

16

the provision of care to actual outcomes will allow consumers

17

and their family members to make more informed choices and

18

promote continuous systemic improvements in the quality of

19

long-term care and services.

20

(7)  An effective performance measurement system should

21

be developed in cooperation with consumers, family members,

22

providers, regulators and payers to provide specific

23

benchmarks to compare various care settings and include not

24

only clinical outcomes, but also managerial and operational

25

practices.

26

(8)  The Department of Health's clinical best-management

27

practices research project has successfully facilitated a

28

comparison between good and average nursing facilities and

29

promoted improvements and innovations with respect to the

30

quality of services provided by nursing facilities.

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(9)  The project should be substantially expanded to

2

include all settings and modalities in which long-term care

3

is provided and continuously improved. Additional resources

4

should be devoted to research needed to validate the

5

clinical, operational and managerial practices that are truly

6

superior and meaningfully contribute to a higher quality of

7

care and a better quality of life for older Pennsylvanians.

8

Section 103.  Definitions.

9

The following words and phrases when used in this act shall

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have the meanings given to them in this section unless the

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context clearly indicates otherwise:

12

"Benchmarks."  Combinations of measures relating to long-term

13

care providers, including evaluations of services provided,

14

compliance history, best-management practices and outcome-based

15

performance measures, developed as voluntary consensus standards

16

and verified based upon research and evaluation, that are

17

associated with providing various levels of quality of care

18

suitable for the management of particular conditions, diseases

19

or disabilities for which long-term care is necessary and

20

appropriate.

21

"Best practices."  Clinical, operational and managerial-

22

related practices that promote the provision of high-quality

23

long-term care.

24

"Commonwealth agency."  An agency of the Commonwealth

25

responsible for the licensing, registration, certification,

26

inspection and investigation of long-term care providers,

27

including, but not limited to, the Department of Aging, the

28

Department of Health, the Insurance Department and the

29

Department of Public Welfare.

30

"Intra-governmental council."  The Intra-Governmental Council

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on Long-Term Care established under section 212 of the act of

2

June 13, 1967 (P.L.31, No.21), known as the Public Welfare Code.

3

"Long-term care."  Assistance, services or devices provided

4

over an extended period of time and designed to meet medical,

5

personal and social needs associated with aging, chronic disease

6

or disability, acute illness or injury or behavioral health

7

problems that enable a person to live as independently as

8

possible, which services are provided by a nursing facility,

9

assisted living facility, domiciliary care home, personal care

10

home, continuing care retirement community, home health agency,

11

adult day-care provider or other home-based and community-based

12

provider.

13

"Long-term care provider."  An entity licensed, certified or

14

approved by a Commonwealth agency to provide long-term care.

15

"Performance measures."  A system composed of processes and

16

outcome measures of performance, processes for collecting,

17

analyzing and disseminating these measures from multiple sources

18

or organizations and an automated database, which together can

19

be used to facilitate performance improvement of long-term care

20

providers under this act.

21

"Quality improvement council."  The Long-Term Care Quality

22

Improvement Council established in section 301.

23

"Voluntary consensus standards."  Nonbinding standards for

24

performance developed through a process comparable to procedures

25

used to develop standards, under section 2(b)(10) of the

26

National Institute of Standards and Technology Act (31 Stat.

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1449, 15 U.S.C. § 272(b)(10)), involving consultation with

28

consumers, family members, regulators and long-term care

29

providers, validated on clinical research and subject to regular

30

and periodic review and modification as necessary to

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continuously seek improvements in the quality of long-term care.

2

CHAPTER 3

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LONG-TERM CARE QUALITY IMPROVEMENT COUNCIL

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Section 301.  Establishment.

5

(a)  General rule.--The Long-Term Care Quality Improvement

6

Council is established as an independent council. The quality

7

improvement council shall be affiliated with and provided with

8

administrative support and legal services by the intra-

9

governmental council and may take action jointly in cooperation

10

with the intra-governmental council.

11

(b)  Composition.--The quality improvement council shall

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consist of the following members:

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(1)  The Secretary of Aging.

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(2)  The Secretary of Health.

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(3)  The Secretary of Public Welfare.

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(4)  The Secretary of Labor and Industry.

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(5)  The Insurance Commissioner.

18

(6)  The Physician General.

19

(7)  Eight residents of this Commonwealth who represent

20

long-term care providers, two of whom shall be appointed by

21

the President pro tempore of the Senate, two of whom shall be

22

appointed by the Minority Leader of the Senate, two of whom

23

shall be appointed by the Speaker of the House of

24

Representatives and two of whom shall be appointed by the

25

Minority Leader of the House of Representatives. Those

26

appointed by the legislative officers shall include a

27

representative of the proprietary nursing facilities,

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nonprofit nursing facilities, county-owned nursing

29

facilities, hospital-based nursing facilities, personal care

30

homes, assisted living facilities, continuing care retirement

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communities and home health agencies.

2

(8)  Three members who are affiliated with Commonwealth

3

university-based research organizations with a purpose of

4

determining the components or factors that serve

5

appropriately as the indicators of quality care in long-term

6

care, one of whom shall be appointed by the Governor, one of

7

whom shall be appointed by the President pro tempore of the

8

Senate and one of whom shall be appointed by the Speaker of

9

the House of Representatives.

10

(9)  Two physicians who practice in long-term care

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settings, one of whom shall practice in a facility-based

12

setting and the other of whom shall practice in a community

13

setting and both of whom shall be appointed by the Governor

14

from a list of at least four qualified individuals

15

recommended by the Pennsylvania Medical Directors

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Association.

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(10)  Two licensed nurses with a minimum of five years'

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experience practicing in a long-term care provider setting

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and currently employed by a long-term care provider, one of

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whom is employed in a facility-based setting and the other of

21

whom is employed in a community setting, both of whom shall

22

be appointed by the Governor.

23

(11)  Two residents of this Commonwealth who either:

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(i)  receive or formerly received long-term care, one

25

of whom resides in a facility-based setting and the other

26

of whom resides in a community setting; or

27

(ii)  are family members of past or current

28

recipients of long-term care in such setting and who are

29

not health care workers nor representatives of a consumer

30

advocacy group, whether paid or unpaid;

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both of whom shall be appointed by the Governor.

2

(c)  Chairperson and vice chairperson.--The members of the

3

quality improvement council shall annually elect, by a majority

4

vote of the members, a chairperson and vice chairperson from

5

among the members who do not serve in an ex officio capacity.

6

(d)  Bylaws.--The quality improvement council shall adopt

7

bylaws, not inconsistent with this act, and may appoint such

8

committees or elect such officers subordinate to those provided

9

for in subsection (c) as it deems advisable.

10

(e)  Professional advisory group.--The quality improvement

11

council shall appoint a professional advisory group that shall,

12

on an ad hoc basis, respond to issues presented to it by the

13

quality improvement council members or committees and shall make

14

recommendations to the quality improvement council.

15

(f)  Compensation and expenses.--The members of the quality

16

improvement council and the professional advisory group shall

17

not receive a salary or per diem allowance for serving in that

18

capacity but shall be reimbursed for actual and necessary

19

expenses incurred in the performance of their duties, including

20

reimbursement of travel and living expenses while engaged in

21

business of the quality improvement council.

22

(g)  Terms.--The terms of the Secretary of Aging, the

23

Secretary of Health, the Secretary of Public Welfare, the

24

Secretary of Labor and Industry, the Insurance Commissioner and

25

the Physician General shall be concurrent with their holding of

26

public office, and the other members shall each serve for a term

27

of three years and continue to serve until their successor is

28

appointed.

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(h)  Vacancies.--Vacancies on the quality improvement council

30

shall be filled in the same manner in which they were originally

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designated under subsection (b) within 60 days of the vacancy,

2

except that appointments to fill vacancies under subsection (b)

3

(7) shall be made from among the same class or category of long-

4

term care providers as the immediate successor of the appointee,

5

except as otherwise agreed upon by the appointing authorities in

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the event that two or more vacancies are filled at the same

7

time.

8

(i)  Quorum.--Twelve members, a majority of which shall be

9

made up of representatives appointed under subsection (b) (7),

10

shall constitute a quorum for the transaction of any business,

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and the act by the majority of the members present at any

12

meeting in which there is a quorum shall be deemed to be the act

13

of the quality improvement council. Notwithstanding any other

14

provision of law, the transaction of any business by the quality

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improvement council at a meeting shall be made either by the

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members present in person or through use of amplified telephonic

17

equipment if authorized by the bylaws of the council.

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(j)  Meetings.--The quality improvement council shall meet at

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least quarterly and at the call of the chairperson or as may be

20

provided in the bylaws under subsection (d).

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Section 302.  Powers and duties.

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(a)  General powers.--The quality improvement council shall

23

exercise all powers necessary and appropriate to carry out its

24

duties, including the following:

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(1)  To employ an executive director and other staff as

26

necessary to implement this act and to fix their compensation

27

and duties. Employees of the quality improvement council

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shall be deemed employees of the Commonwealth for all

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purposes.

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(2)  To apply for, solicit, receive, establish priorities

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1

for, allocate, disburse, contract for and administer funds,

2

including appropriations, grants, gifts and bequests, that

3

are made available to the quality improvement council from

4

any source consistent with the purposes of this act.

5

(3)  To make and execute contracts and other instruments

6

and engage professional consultants as necessary to implement

7

this act under the procedures set forth in 62 Pa.C.S. Pt. I 

8

(relating to Commonwealth Procurement Code).

9

(4)  To conduct examinations, investigations and audits

10

and to hear testimony and take proof under oath or

11

affirmation at public or private hearings on any matter

12

necessary to its duties.

13

(b)  Rules and regulations.--The quality improvement council

14

may, in the manner provided by law, promulgate rules and

15

regulations necessary to carry out its duties under this act,

16

including rules and regulations relating to:

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(1)  The establishment of a methodology to collect,

18

analyze and disseminate data reflecting provider quality and

19

service effectiveness and to continuously study quality of

20

care.

21

(2)  The submission of health care information by long-

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term care providers to the quality improvement council as

23

necessary to evaluate provider quality and service

24

effectiveness and to continuously study the quality of care.

25

Any documents, materials, records, information or other raw

26

data submitted by a long-term care provider shall be deemed

27

confidential by the quality improvement council and shall not

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be discoverable or admissible as evidence in any civil or

29

administrative action or proceeding in the same manner as

30

provided by section 311 of the act of March 20, 2002 (P.L.

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1

154, No.13), known as the Medical Care Availability and

2

Reduction of Error (Mcare) Act, and shall not be made

3

available to any person or agency, other than the quality

4

improvement council, except reports regarding the overall

5

quality of long-term care with the expressed written consent

6

of the providers.

7

(3)  The quality improvement council shall have the

8

authority to independently audit information submitted by

9

data sources as needed to corroborate the accuracy of the

10

data, provided that audits shall be coordinated, to the

11

extent practical, with other audits performed by or on behalf

12

of the Commonwealth.

13

(c)  Development of voluntary consensus standards.--In

14

accordance with the provisions set forth in 62 Pa.C.S. Pt. I,

15

the quality improvement council shall contract with an

16

independent, qualified, experienced and nationally recognized

17

entity qualified to develop, implement and continuously update

18

and revise voluntary consensus standards for long-term care

19

providers to do all of the following:

20

(1)  Provide comprehensive comparative information

21

regarding the characteristics of long-term care providers and

22

services provided by them, including, but not limited to,

23

information relating to location, capacity, staffing, methods

24

of payment accepted and the availability of financial

25

assistance.

26

(2)  Provide comprehensive comparative information

27

regarding the quality of care services provided by long-term

28

care providers.

29

(3)  Identify, evaluate and promote the adoption of best

30

practices for long-term care providers and provide

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comprehensive comparative information regarding the

2

utilization of best practices by long-term care providers.

3

(4)  Identify and validate performance measures for the

4

evaluation of the quality of long-term care and provide

5

comprehensive comparative information regarding the quality

6

of long-term care offered by long-term care providers based

7

upon such performance measures.

8

(5)  Provide information for long-term care providers,

9

which benchmarks combine information relating to the

10

characteristics, services, compliance history, adoption of

11

best practices and quality of care as determined by

12

performance measures, for use in a rating system that will

13

assist consumers and family members in making informed

14

choices for obtaining long-term care.

15

(6)  Provide a comprehensive comparative information

16

system that is readily available to consumers, their family

17

members and the general public without cost both through

18

publications and Internet access regarding long-term care

19

providers and that assists in the selection and utilization

20

of long-term care and services.

21

(7)  Provide recommendations to the quality improvement

22

council for long-term care policies, practices and procedures

23

that may be instituted for the purposes of enhancing and

24

improving the quality of long-term care provided.

25

(8)  Establish annual quality improvement goals for long-

26

term care facilities in this Commonwealth.

27

(d)  Annual report to the General Assembly.--The quality

28

improvement council shall issue a report no later than December

29

31, 2009, and annually thereafter, to the General Assembly and

30

the public regarding its activities during the preceding year.

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The report shall be made available without cost both through

2

publication and Internet access and shall include:

3

(1)  A schedule of the year's meetings.

4

(2)  A list of contracts entered into by the quality

5

improvement council and amounts awarded to each contractor.

6

(3)  Financial information regarding funding received and

7

expenditures undertaken by the quality improvement council

8

and amounts awarded to each contractor.

9

(4)  A summary of data collected regarding the

10

characteristics and services provided by long-term care

11

providers, adoption of best practices and achievement of

12

quality based on performance measures.

13

(5)  The status of development, implementation, use and

14

improvement in the comprehensive comparative consumer

15

information system as provided by subsection (c)(6).

16

(6)  Recommendations for long-term care policies,

17

practices and procedures that may be voluntarily adopted by

18

long-term care providers to enhance and improve the quality

19

of long-term care.

20

(7)  Recommendations for statutory or regulatory changes

21

to improve long-term care provider quality performance.

22

Section 303.  Commonwealth agency responsibilities.

23

(a)  General rule.--Each Commonwealth agency responsible for

24

the regulation of long-term care providers or the development of

25

policies regarding long-term care shall:

26

(1)  Receive and review reports of trends identified in

27

the analysis of performance measures under section 302.

28

(2)  In conjunction with the quality improvement council,

29

analyze and evaluate existing regulations and approve

30

recommendations issued by the quality improvement council

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under section 302(d)(7).

2

(b)  Implementation of recommendations.--Recommendations made

3

by the quality improvement council to providers under section

4

302(d)(6) regarding practices and procedures for the improvement

5

of the quality of care may not be considered for the purposes of

6

long-term care provider licensure, registration or certification

7

by a Commonwealth agency and may not be considered mandatory

8

standards of care for statutory or regulatory purposes or in

9

civil or criminal litigation.

10

CHAPTER 5

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MISCELLANEOUS PROVISIONS

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Section 501.  Administration.

13

(a)  Access to council data.--Except as otherwise provided by

14

this act, information and data received by the quality

15

improvement council or its professional consultants may be

16

disseminated and published and shall be made available, used and

17

protected from unauthorized disclosure and shall not be subject

18

to disclosure under the act of June February 14, 2008 (P.L.6,

19

No.3), known as the Right-to-Know Law.

20

(b)  Enforcement.--The quality improvement council shall have

21

standing to bring an action in law or in equity through legal

22

counsel as provided by the Governor's Office of General Counsel

23

in a court of competent jurisdiction to enforce compliance with

24

any requirement of this act, including regulations adopted under

25

this act.

26

(c)  Antitrust.--A person or entity that submits or receives

27

data or information under this act or receives data or

28

information from the quality improvement council or its

29

professional consultants in accordance with this act are

30

declared to be acting under Commonwealth requirements embodied

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in this act and shall be exempt from antitrust claims or actions

2

grounded upon the submission or receipt of such data or

3

information.

4

Section 502.  Repeals.

5

All acts and parts of acts are repealed insofar as they are

6

inconsistent with this act.

7

Section 503.  Effective date.

8

This act shall take effect in 180 days.

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