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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Australia: Northern Territory Parliament Passes Bill to Decriminalize Abortion, Improve Access

(Mar. 28, 2017) On March 21, 2017, Australia’s Northern Territory Parliament voted to pass the Termination of Pregnancy Law Reform Bill 2017 (NT) (Northern Territory Legislation website). The Bill amends part VI, division 8, of the Criminal Code Act (NT), which currently criminalizes the administration of a drug or use of an instrument with the intention of procuring a woman’s miscarriage. (Criminal Code Act (NT), s 208B, as in force at Nov. 1, 2016, Northern Territory Legislation website.) It also repeals the current provision in the Medical Services Act (NT) that sets out the circumstances in which it is lawful for a medical practitioner to give medical treatment intended to terminate a pregnancy, replacing this with the new abortion law framework provided by the Bill. (Medical Services Act (NT), s 11, as in force July 1, 2014, Northern Territory Legislation website.)

The Bill was passed with a vote of twenty to four. (Minutes of Proceedings No. 19, Mar. 21, 2017, at 8-9, Northern Territory of Australia Legislative Assembly website.) It will come into force on July 1, 2017. (Jill Poulsen, New Northern Territory Abortion Law to Come into Effect on July 1, DAILY TELEGRAPH (Mar. 23, 2017).)

Existing Law: The Medical Services Act 

Section 11 of the Medical Services Act requires that, in order for an abortion to be performed,

  • a medical practitioner must reasonably believe that a woman is not more than 14 weeks pregnant;
  • the practitioner and another medical practitioner (one of whom must be a gynecologist or obstetrician) must be of the opinion that either
    • “the continuance of the pregnancy would involve greater risk to her life or greater risk of harm to her physical or mental health than if the pregnancy were terminated”; or
    • “there is a substantial risk that, if the pregnancy were not terminated and the child were born, the child would be seriously handicapped because of physical or mental abnormalities”;
  • the treatment must be given in a hospital; and
  • “the appropriate person consents to the giving of the treatment.” (Medical Services Act (NT), s 11(1) & (2).)

The Act also provides for abortions to be performed up to the 23rd week of pregnancy if a medical practitioner “is of the opinion termination of the pregnancy is immediately necessary to prevent serious harm to [the woman’s] physical or mental health.” (Id. s 11(3).)  Furthermore, abortion is lawful at any time if “the treatment is given or carried out in good faith for the sole purpose of preserving [the woman’s] life.” (Id. s 11(4).)

In all cases, the appropriate person to provide consent is the woman, if she is over 16 years of age and capable in law of giving consent.  The consent of “each person having authority in law” is required if the woman is under 16 years of age or is otherwise incapable in law of giving consent.  (Id. s 11(5).)

The Act provides that “[a] person is not under any duty to terminate or assist in terminating a woman’s pregnancy, or to dispose of or assist in disposing of an aborted foetus, if the person has a conscientious objection to doing so.” (Id. s 11(6).)

Issues Identified Regarding the Existing Law 

Section 11 of the Medical Services Act was drafted in the 1970s.  A discussion paper on the proposed reform of abortion law in the Northern Territory, published in 2016 by the Department of Health, stated that “there are specific elements of the current Act that have not kept pace with the changing nature of medicine, best practice in medicine, societal expectations, or legislation elsewhere in Australia,” and that aspects of the law have been identified as limiting access to termination of pregnancy for women in the Northern Territory.  (Department of Health (NT), Termination of Pregnancy Law Reform; Improving Access by Northern Territory Women to Safe Termination of Pregnancy Services, Discussion Paper 1 (2016); see also Department of Health (NT), FAQ Termination of Pregnancy Law Reform; … (2016).)

The paper went on to discuss these aspects, including the following:

  • The requirement in the Act for abortions to only take place in a hospital means that drugs such as RU486, which was registered in Australia for medical termination of early pregnancy in 2012 and is now on the Pharmaceutical Benefits Scheme (i.e., is subsidized by the government), cannot be used in practice. Such medical termination involves two stages, the second of which may be performed at a woman’s home, and the process can take several days; under the Northern Territory legislation, the woman would have to remain in hospital for the full time until the miscarriage is completed. (Discussion Paper, supra,at 2; About the PBS, Pharmaceutical Benefits Scheme website (last updated Jan. 1, 2017).)
  • Also due to the requirement for abortions to be performed in hospitals, the majority of abortions in Northern Territory, including early terminations, are performed in one of two public hospitals (free of charge for Medicareeligible resident women) and one private hospital. Medicare is Australia’s publicly funded health care system. (Discussion Paper, supra, at 2 & 8; Medicare Services, DEPARTMENT OF HUMAN SERVICES (last updated Jan. 9, 2017).) The discussion paper notes that in all other Australian jurisdictions, early medical terminations (at up to nine weeks of gestation) and surgical terminations (at up to 14 weeks of gestation) are safely conducted outside a hospital setting. It also states, “[t]here is anecdotal evidence that women travel interstate to access medical termination services.” (Discussion Paper, supra, at 5.)
  • The consent requirements in the Act mean that, where a young woman is under the age of 16, the consent of both of her parents or legal guardians must be obtained in order for a lawful termination of a pregnancy to be performed, which is not consistent with consent requirements for other medical procedures. The discussion paper also states that this requirement, “is viewed as potentially restrictive to young women accessing termination, with the potential for this vulnerable group to seek unsafe or unsupervised terminations.” (Id. at 9.)

New Framework in the Bill

The Bill is “intended to increase access by women to safe terminations of pregnancy in either of out-of-hospital or within hospital settings, with health practitioners applying evidence-based practice within a framework of professional standards and guidelines relevant to assessment and treatment.” (Explanatory Statement, Termination of Pregnancy Law Reform Bill, Serial No. 17 (Minister for Health), at 1, Northern Territory Legislation website.) 

The Bill replaces the current Criminal Code Act provisions related to abortion with a provision that criminalizes, with a maximum penalty of imprisonment for seven years, only the “termination of a pregnancy by an unqualified person.” (Termination of Pregnancy Law Reform Bill 2017 (NT), pt 6, inserting a new s 208A into the Criminal Code Act (NT).) The Criminal Code Act will now list those who are considered to be a “qualified person,” who must also act in accordance with the new legislation. The new provision clarifies that “[t]his section does not apply to a woman who consents to, or assists in, the performance of a termination on herself.” (Id.)

The legislation will now allow a “suitably qualified medical practitioner” to perform a termination on a woman who is not more than 14 weeks pregnant where the practitioner considers this to be appropriate in the circumstances, having regard to

(a) all relevant medical circumstances; and
(b) the woman’s current and future physical, psychological and social circumstances; and
(c) professional standards and guidelines. (Id. cl 7.)

Certain authorized people may supply and administer a termination drug at the direction of the medical practitioner.  (Id. cl 8.) For terminations where is woman is between 14 and 23 weeks pregnant, the medical practitioner must consult with “at least one other suitably qualified medical practitioner who has assessed the woman” and both must consider the termination appropriate in the circumstances.  (Id. cl 9.)In addition, “[a] medical practitioner may perform a termination on a woman in an emergency if the medical practitioner considers the termination is necessary to preserve the life of the woman.”  (Id. cl 10.)

The Bill does include provisions related to conscientious objection to performing abortions on the part of medical practitioners. However, unlike the existing law, such a practitioner is required to inform the woman of his or her conscientious objection in relation to the termination and to refer her, “within a clinically reasonable time,” to another medical practitioner who has no such objection. (Id. cl 11.) There is also a requirement to perform or assist with a termination in an emergency to preserve the life of the woman, despite any conscientious objection to terminations.  (Id. cl 12.)

Part 3 of the Bill provides for “safe access zones,” which are defined as being the boundary of premises for performing abortions and the area 150 meters outside that boundary. (Id. pt 3 & cl 4.)  Certain conduct is prohibited in such areas, specifically:

(a) harassing, hindering, intimidating, interfering with, threatening or obstructing a person, including by recording the person by any means without the person’s consent and without a reasonable excuse, that may result in deterring the person from:
(i) entering or leaving premises for performing terminations;
(ii) performing, or receiving, a termination at premises for performing terminations; and
(b) an act that could be seen or heard by a person in the vicinity of premises for performing terminations, that may result in deterring the person or another person from:
(i) entering or leaving the premises; or
(ii) performing a termination, or receiving a termination at the premises. (Id. cl 14(4).)

The publication of an unauthorized recording of a person who is in a safe access zone is also an offense. (Id. cl 15.)

Debate in the Parliament

The Bill’s sponsor, Minister of Health Natasha Fyles, noted in her second reading speech in the Northern Territory Parliament that there had been “passionate debate” in previous years on proposed changes to the abortion law of the territory, which had failed to pass. (Northern Territory Legislative Assembly, Debates, Second Reading Speech (Natasha Fyles), Termination of Pregnancy Law Reform Bill, at 1 (Feb. 15, 2017); Helen Davidson, Abortion Decriminalised in Northern Territory After Long Campaign, GUARDIAN (Mar. 21, 2017).) Prior to the passage of the Bill, there were further “impassioned speeches” in the Parliament, during which ”[b]oth the Government and Opposition argued the bill would bring the Territory in line with other jurisdictions, and into the 21st century.”  (Lucy Marks, NT Abortion Bill: Reform to Allow RU486 Will Deliver Equality, Lead to ‘Dark Ages,’ Politicians tell Parliament, ABC NEWS (Mar. 21, 2017, updated Mar. 22, 2017).)

An independent member, Gerry Wood, argued strongly against the Bill and put forward a number of amendments, stating that the Bill would take the territory back to “the dark ages” and would contribute to a new “stolen generation” (referring to the forcible removal of Aboriginal children pursuant to government policies). (Id.; see generally Northern Territory Legislative Assembly, Debates, Third Reading Debate, Termination of Pregnancy Law Reform Bill (Mar. 21, 2017).)  Two other independent members and a Labor Party member also voted against the Bill.  (Davidson, supra.)

Much of the final debate on the Bill was focused on the potential impact on Aboriginal women, particularly those living in remote communities in the Northern Territory. An Aboriginal member of the Northern Territory Parliament said that “she was appalled that the bill was being diverted from an issue about gender equality into one about race.”  (Id.)

Other Abortion Laws in Australia

Two other Australian jurisdictions, Queensland and New South Wales, have legislative provisions that criminalize abortion. (Id.) In the past year, bills have been introduced in both states to decriminalize abortion but have not been passed. (Chris O’Brien, Abortion Decriminalisation Bills Withdrawn from Queensland Parliament Agenda, ABC NEWS (Feb. 27, 2017); Meredith Griffiths, Abortion Laws ‘Ambiguous, Outdated’ in Qld and NSW, Doctors Argue, ABC NEWS (Oct. 9, 2016).)

Apart from the Northern Territory, as noted above, all other Australian jurisdictions allow for early medical abortion using RU486. (Suzanne Belton, Decriminalisation in the NT Signals Abortion Is Part of Normal Health Care, THE CONVERSATION (Mar. 23, 2017).) Victoria and Tasmania also have laws regarding safe access zones. (Ronli Sifris, State by State, ‘Safe Access Zones’ Around Clinics Are Shielding Women from Abortion Protesters, THE CONVERSATION (Nov. 29, 2015); Kelly Buchanan, Australia: Victorian Parliament Passes Law Establishing Protest Buffer Zone for Abortion Clinics, GLOBAL LEGAL MONITOR (Nov. 30, 2015).)

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Kenya: Anti-Money Laundering Law Amended

(Mar. 24, 2017) On March 3, 2017, the Kenyan President, Uhuru Kenyatta, signed into law the Proceeds of Crime and Anti-Money Laundering (Amendment) Bill.  During the signing ceremony, he reportedly noted that “[t]his is a major tool in our sustained efforts to fight corruption.  It means that no proceeds of theft and corruption are beyond the reach of the State.”  (Maryanne Gicobi, Kenyan President Signs Anti-Money Laundering Bill to Law, EAST AFRICAN (Mar. 3, 2017).)  At present it appears that the latest available version of the amendment bill is one that was published in 2015; it is unclear whether the newly adopted law has further revisions.  Therefore, references to the changes in the law are to the 2015 Amendment Bill on the assumption that those changes were adopted.

Based on the 2015 amendment bill, the 2017 amendment would strengthen the authority of the Financial Reporting Centre (FRC) to issue instructions, directions, and rules.  (Proceeds of Crime and Anti-Money Laundering (Amendment) Bill, 2015, KENYA GAZETTE SUPPLEMENT, No. 190 (Nov. 26, 2015), Institute of Certified Public Accountants of Kenya (ICPAK) website.)  The Proceeds of Crime and Anti-Money Laundering Act of 2009 established the FRC mainly to assist “in the identification of the proceeds of crime and the combating of money laundering and the financing of terrorism.”  (Proceeds of Crime and Anti-Money Laundering Act, No. 9 of 2009, § 23 (June 28, 2010), Laws of Kenya  website.)  A 2012 amendment to the Act accorded the FRC the authority to issue “such instructions, directions, guidelines or rules to reporting institutions as it may consider necessary for the better carrying out of its functions.”  (Proceeds of Crime and Anti-Money Laundering (Amendment) Act, No. 51 of 2012, § 9, KENYA GAZETTE SUPPLEMENT, No. 215 (Jan. 4, 2013), Laws of Kenya website.)

The Amendment Bill would strengthen this authority by affording the FRC the power to impose civil penalties against persons (both natural and juridical) who defy its authority.  Specifically, in addition to other forms of penalty envisaged under the 2009 Act, the Amendment Bill states that a natural person who “fails to comply with any instruction, direction or rules issued by the [FRC] … shall be liable on conviction to a fine not exceeding 5 million shillings (KES)” (about US$48,590).  (Proceeds of Crime and Anti-Money Laundering (Amendment) Bill, 2015, § 4.)  A similar violation by a juridical person is, on conviction, subject to a fine not exceeding KES25 million (about US$242,955).  (Id.)  If the violation is not remedied, the person responsible is liable to pay KES10,000 (about US$97) per day for up to 180 days.  (Id.)

The  Amendment Bill also expands the category of persons that fall under the authority of the FRC.  It does this by clarifying the definition of the term “reporting institutions.”  The Proceeds of Crime and Anti-Money Laundering Act of 2009 defined the term “reporting institution” as “a financial institution and a designated non-financial business and profession.”  (Proceeds of Crime and Anti-Money Laundering Act No. 9 of 2009, § 2.)    The Amendment Bill further defines the term “designated non-financial businesses or professions” to include:

  • casinos (including online casinos);
  • real estate agencies;
  • those dealing in precious metals;
  • those dealing in precious stones;
  • accountants;
  • non-governmental organizations; and
  • any business or profession that the Minister of Finance, on the advice of the FRC, deems vulnerable to money laundering.  (Proceeds of Crime and Anti-Money Laundering (Amendment) Bill, 2015, § 2.

The Amendment Bill also accords the FRC additional, significant powers.  It authorizes the institution to issue an order barring an individual from employment within a a particular reporting institution or employment in a specific capacity.  (Id. § 4.)  It also permits the FRC to issue an order “to a competent supervisory authority requesting the suspension or revocation of a licence or registration of a specified reporting institution whether entirely or in a specified capacity or of any employee of the reporting institution.” (Id.)

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Azerbaijan: President Appointed His Wife as First Vice-President

(Mar. 24, 2017) On February 21, 2017, the President of Azerbaijan, Ilham Aliyev, appointed his wife, Mehriban Aliyeva, as the First Vice-President of the Republic, in accordance with newly added article 1031 of Azerbaijan’s Constitution.  (Appointment by the President of the Republic of Azerbaijan of M. A. Aliyeva as the First Vice-President of the Republic of Azerbaijan, Presidential Order of Feb. 21, 2017, President of Azerbaijan website; Constitution of the Republic of Azerbaijan, Constitutional Court website (last visited Mar. 15, 2017) (both in Azerbaijani).)  Aliyeva also chairs Azerbaijan’s ruling political party, Yeni Azerbaijan. (Amanda Erickson, Azerbaijan’s President Has Chosen a New VP – His Wife, WASHINGTON POST (Feb. 22, 2017).)

The new offices of first vice-president and two additional vice-presidents were introduced by the constitutional amendments of September 2016.  Vice-Presidents are appointed and dismissed by the President.  (Referendum Act on Amendments to the Constitution of the Republic of Azerbaijan, approved by Presidential Order of July 18, 2016 (in Azerbaijani); Constitution of the Republic of Azerbaijan, art. 1031.)  The First Vice-President, not the Prime Minister as the Constitution had formerly prescribed, will serve as the acting president if the President resigns or is unable to serve due to incapacity or illness.  Only if the First Vice-President becomes incapacitated as well will the head of state’s functions be transferred to the Prime Minister.  (Constitution of the Republic of Azerbaijan, art. 105.)  Newly added article 1061 of the Constitution guarantees the immunity of the Vice-Presidents.  It is expected that the First Vice-President’s duties will include overseeing the Cabinet of Ministers, including the Prime Minister.  (Azerbaijan Leader Names His Wife as Country’s First Vice President, BLOOMBERG (Feb. 21, 2017).)

The amendments of September 2016 also extended the presidential term from five years to seven. (Constitution of the Republic of Azerbaijan, art. 101) and removed the requirement that the president be at least 35 years of age (id. art. 100), a change that, in the opinion of observers, makes Aliyev’s 19-year-old son eligible for the office.  (Erickson, supra.)  Presidential term limits were abolished by a previous constitutional referendum held in 2009.  (Id.; Peter Roudik, Azerbaijan: Court Removes Limits on Number of Presidential Terms, GLOBAL LEGAL MONITOR (Jan. 26, 2009).)  The minimum age for election to the legislature was also lowered, from 25 years of age to 18.  (Constitution of the Republic of Azerbaijan, art. 34.)  Other amendments allow the President to schedule an early presidential election and dissolve Parliament if it votes no-confidence in the government or rejects presidential nominees to key government posts twice in one year.  (Constitution of the Republic of Azerbaijan, art. 981.)

The European Commission for Democracy Through Law (the Venice Commission) concluded that these constitutional changes “would severely upset the balance of power and give ‘unprecedented’ control to the president.” (Azerbaijan Holds Controversial Constitutional Referendum, Radio Free Europe Radio Liberty website (last updated Sept. 26, 2016.)

Prepared by Nerses Isajanyan, Foreign Law Consultant, under the supervision of Peter Roudik, Director of Legal Research.

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Indonesia: Proposed Legislation on Tobacco Could Increase Domestic Production

(Mar. 24, 2017) The House of Representatives of Indonesia is considering a proposed law that could increase the country’s tobacco output. (Eveline Danubrata & Agustinus Beo Da Costa, Indonesia Tobacco Bill Would Fire up Output Despite Health Fears, REUTERS (Mar. 15, 2017).) The bill is listed among “priority legislation” on the legislative website. (RRU Tentang Pertembakauan [Bill on Tobacco], PROLEGNAS PRIORITAS (2017) [PRIORITY NATIONAL LEGISLATION PROGRAM (2017)], No. 20, House of Representatives website (last visited Mar. 16, 2017).)

The draft legislation covers the production and distribution of and excise taxes on tobacco. It would require domestic makers of tobacco products to use locally sourced tobacco for a minimum of 80% of their products.  In addition, it would set an excise tax of 200% of the price of imported cigarettes. (Danubrata & Da Costa, supra.) The current excise tax is 43% of the retail price, on domestically produced and imported tobacco products. (World Lung Foundation, Indonesia, TOBACCO ATLAS (2015); Indonesia – Corporate Taxation – Country Surveys – 9. Miscellaneous Taxes (Jan. 1, 2017), International Bureau of Fiscal Documentation online subscription database.)

The goal of the bill, as first considered last year, was to increase domestic cigarette production three-fold by 2020. That original bill was rejected due to objections from the Ministry of Health; the bill was reintroduced in the legislative program for 2017. (Marguerite Afra Sapiie, Indonesia to Decide Stance on Tobacco Bill, JAKARTA POST (Mar. 10, 2017).)

Although on March 14, 2017, the Cabinet Secretary, Pramono Anung, had stated that the proposed legislation was unnecessary, four days later, on the March 18 deadline for a government response to the legislature on the bill, Indonesia’s President Joko Widodo sent a letter to the House of Representatives agreeing that his administration would discuss the proposal with legislators. The letter gave responsibility for the discussions to the Trade, Health, Industry, and Finance Ministers. (Haeril Halim & Margareth S. Aritonang, Indonesia Gives Tobacco Bill a Shot, JAKARTA POST (Mar. 22, 2017).)

Background

Indonesia is the fourth largest cigarette-producing nation in the world. In addition to providing employment for millions of Indonesians, the industry is a significant contributor to the national tax revenue. Nearly two-thirds of Indonesian men smoke. (Danubrata & Da Costa, supra.) As of 2015, more than 217,400 Indonesians had died of tobacco-related causes annually. (World Lung Foundation, supra.)

According to the Minister of Health, Nila Moeloek, her Ministry opposes the bill due to the need to “safeguard the health of the people.” (Danubrata & Da Costa, supra.) An opposite view was expressed by legislator Firman Subagyo, who considers tobacco a “strategic” product that could be beneficial to both farmers and the national budget. He said, “[h]ealth should not be used as an excuse to destroy people’s livelihood.” (Id.)

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Taiwan: Amendment of Long-Term Care Act

(Mar. 23, 2017) Taiwan’s Long-Term Care Services Act, which was promulgated on June 3, 2015, but is not slated to become law until June 2017, was amended effective January 28, 2017. (Long-Term Care Services Law: Amendment of Long-term Care Services Law Revises Articles 15, 22, 62 and 66, THE GAZETTE OF THE OFFICE OF THE PRESIDENT, No. 7288 (Jan. 26, 2017, effective Jan. 28, 2017), Global Legal Information Network, Legislative Yuan, R.O.C., website (click on pdf icon to view Chinese text of the Presidential Order amending the Act); Wendy Zeldin, Taiwan: Long-Term Care Legislation Adopted, GLOBAL LEGAL MONITOR (May 22, 2015).)

The amendment law adds additional goals to the ones stated in the provision on the establishment of a special fund for long-term care services, namely, to provide for long-term care services, to expand on and spread out the capacity for long-term care services, and to enrich and balance the services with human resources and subsidize various outlays. (Long-Term Care Services Law…, supra; Long-Term Care Service Act (adopted on May 15, 2015, published by Presidential Order of June 3, 2015), art. 15 ¶ 1, Ministry of Health and Welfare website (in Chinese); Long-Term Care Services Act (June 3, 2015), Ministry of Health and Welfare website (English translation).)

The amendment law also adds two possible new sources of funding to the list set forth in article 15: additional tax revenue from (1) an increase of the estate and gift tax rates from 10% to up to 20%, and (2) an increase in the tax levied on tobacco from NT$590 per thousand cigarettes (or kilogram of other tobacco products) to NT$1,590. (Long-Term Care Services Law…, supra, art. 15 ¶ 2(1)&(2).) In addition, the amendment specifies that the measures set forth under the Act Governing the Allocation of Government Revenues and Expenditures will not apply to these additional tax revenues. (Id. art. 15 ¶ 3; Act Governing the Allocation of Government Revenues and Expenditures (June 13, 1951, as last amended Jan. 25, 1999), Laws & Regulations Database of the Republic of China (toggle for Chinese text); Wendy Zeldin, Taiwan: Proposed Amendments to Tobacco and Alcohol Tax, GLOBAL LEGAL MONITOR (Mar. 20, 2017).)

A new (third) paragraph added to article 22 of the Act states that private institutions engaged in institutional residential long-term care services referred to in the Act that were established in accordance with the Senior Citizens Welfare Act, the Nursing Staff Act, and the Act on Protection of the Rights and Interests of Persons with Disabilities prior to the implementation of the amendment law, will be exempted, except if they expand or relocate, from the restriction that long-term care institutions that provide institutional lodging services must be established by financial organization legal persons and civic organization judicial persons (as stipulated in ¶ 1 of art. 22). (Long-Term Care Services Law…, supra, art. 22 ¶ 3; Long-Term Care Services Act, art. 22.)

Under a revised article 62, institutions that offered long-term care services pursuant to other laws prior to the enforcement of the amendment law “may continue to provide such services according to the original regulations.” (Long-Term Care Services Law…, supra, art. 62.) The amendment removes the other provisions in article 62 related to the requirement that long-term care related institutions reorganize within five years after the Act takes effect, leaving just the abovementioned provision. (Id.; Long-Term Care Services Act, art. 62.)

Finally, the amended articles will be implemented on the date of the enforcement of the Long-Term Care Services Act. (Long-Term Care Services Law…, supra, art. 66.)

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