RULES AND REGULATIONS
STATE BOARD OF MEDICINE
[49 PA. CODE CH. 16]
Child Abuse Reporting Requirements
[26 Pa.B. 5386]
The State Board of Medicine (Board), by this order adopts Chapter 16, Subchapter G (relating to minimum standards of practice--child abuse reporting) to read as set forth in Annex A.
A. Effective Date
These regulations are effective upon publication in the Pennsylvania Bulletin.
B. Statutory Authority
These regulations are adopted under the authority of 23 Pa.C.S. (relating to Child Protective Services Law) (CPSL) specifically section 6383(b)(2) of the CPSL (relating to education and training) and section 8 of the Medical Practice Act of 1985 (63 P. S. § 422.8).
The CPSL was enacted in 1975 to establish a comprehensive statutory scheme to identify and investigate reports of suspected child abuse and to provide child protective services by and through the Department of Public Welfare (DPW) and county children and youth social service (CYS) agencies.
A key element of the CPSL is section 6311 of the CPSL (relating to persons required to report suspected child abuse). This section requires persons who come in contact with children as a part of their profession or occupation to report cases of suspected child abuse. These persons are commonly referred to as mandated reporters. Mandated reporters are identified as persons who, in their employment or occupation or practice of their profession, come into contact with children in a professional or official capacity. Mandated reporters shall, under section 6313 of the CPSL (relating to reporting procedures), file reports orally and in writing with the CYS agency when they have reasonable cause to suspect, based on medical, professional or other training and experience that a child coming before them in their professional or official capacity is an abused child. Mandated reporters are given immunity from civil or criminal liability for reports made in good faith under section 6318 of the CPSL (relating to immunity from liability). Section 6311(b) of the CPSL enumerates persons required to report as to ''include, but . . . not limited to, any . . . medical doctors.'' In its proposed rulemaking, the Board has included physician assistant, nurse midwife, certified registered nurse practitioner, respiratory care practitioner, drugless therapist, acupuncturist or auxiliary personnel performing radiologic procedures on the premises of a medical doctor (Board regulated practitioner) as persons required to report.
In 1994, amendments were made to the CPSL. The purpose of the amendments was to, inter alia, encourage more complete reporting of suspected child abuse. See section 6302(a) and (b) (relating to findings and purpose of chapter). Section 6383(b) of the CPSL was amended requiring the Department of State (Department) to make training and educational materials available to the licensing boards whose licensees are mandated reporters and requiring the licensing boards to promulgate regulations within 1 year of the effective date of the amendments, July 1, 1996, on the responsibilities of mandated reporters specifying that mandatory reporting requirements take precedence over a professional standard which might otherwise apply.
D. Summary of Comments and Responses on Proposed Rulemaking
Notice of proposed rulemaking was published at 26 Pa.B. 1014 (March 9, 1996). The Board received comments from several public commentators, Hon. Jo Ann R. Lawer, Deputy Secretary for Children, Youth and Families on behalf of DPW, individual Legislators, the House Professional Licensure Committee and the Independent Regulatory Review Commission (IRRC). Responses to these comments are organized by subject as follows.
§ 16.101. Definitions.
The commentators, including the Pennsylvania Medical Society, objected to the inclusion of a definition of ''abused child,'' commenting that the definition itself was confusing and contrary to Legislative intent. The Board has agreed to delete the definition in final rulemaking and replace the term with ''victim of child abuse'' where ''abused child'' was used in the text of the proposed amendments.
The DPW and IRRC recommended, and the Board concurs, that the definition of ''sexual abuse or exploitation'' be amended in final rulemaking to be consistent with the statutory definition as amended by the act of March 31, 1995 (P. L. 985, No. 10) (Spec. Sess. No. 1).
The definition of ''child abuse'' was the subject of a comment of IRRC. IRRC questioned whether the Board's definition of ''child abuse'' is sufficiently complete and within the parameters of the CPSL. IRRC's concern is addressed to the proposal's omission in its definition of ''child abuse'' as stated in section 6303(b)(2) of the CPSL. This paragraph of the CPSL provides:''(2) No child shall be deemed to be physically or mentally abused based on injuries that result solely from environmental factors that are beyond the control of the parent or person responsible for the child's welfare, such as inadequate housing, furnishings, income, clothing and medical care.''
IRRC noted, in its comments, that it had suggested to the Legislative staffs of the House and Senate and the Department and DPW that section 6303(b)(2) of the CPSL be included in the regulatory definition. Both Senator Michael A. O'Pake and Representative Kevin Blaum, in response, wrote IRRC opposing the inclusion on the ground that to do so would be contrary to the purpose of the amendments to encourage more complete reporting of suspected child abuse and to the overall statutory scheme, which in the Legislators' view, was intended to place the responsibility for deciding whether environmental factors were the causative agents of the injury on the CYS agencies, not mandated reporters.
Nonetheless, IRRC disagreed with the Legislative commentary. IRRC expressed the view that excluding the exception of section 6303(b)(2) of the CPSL is inconsistent with the CPSL and enlarges the scope of what constitutes child abuse. IRRC disagreed with the conclusion that including the exception would conflict with the purpose of encouraging more complete reporting of suspected child abuse or that to so include the exceptions would require mandated reporters to make a determination without adequate information of a child's family or living conditions. IRRC also expressed the view that the commentators' concern that inclusion may encourage noncompliance is more properly addressed in enforcement through disciplinary actions rather than in § 16.101 (relating to definitions). For these reasons, IRRC recommended that the language of section 6303(b)(2) of the CPSL be added to the definition of ''child abuse'' in final rulemaking. IRRC also suggested a new § 16.102(e) (relating to suspected child abuse--mandated reporting requirements) which would reiterate the statutory exception as a basis for not reporting, but advise Board regulated practitioners that a Board regulated practitioner who does not believe that environmental factors were the sole cause of the injury is subject to disciplinary action and criminal sanctions.
The DPW disagreed with IRRC's recommendation. The DPW commented that the decision of whether or not the child is an abused child is the responsibility of the CYS agency which is responsible for taking into consideration environmental factors in determining whether or not the child is physically or mentally abused. The DPW expressed concern that IRRC's suggestion would place the mandated reporter in the position of having to question the child and parents rather extensively to determine whether or not environmental factors were the cause for the abuse. The DPW views that result as contrary to one of the purposes of the CPSL which is to encourage more complete reporting of suspected child abuse. Secondly, the DPW noted although some situations may not be abuse, there is often a need for other services which the CYS agency may be able to provide or arrange.
After a review of the comments, the Board has determined that no change to the definition should be made in final rulemaking.
In the Board's view, a clear ambiguity exists as to whether or not the General Assembly intended the CYS agency to determine in either instance whether the exception would apply or whether the General Assembly intended mandated reporters to make the environmental factor determination.
Part V of Title 1 of the Pennsylvania Consolidated Statutes (relating to Statutory Construction Act) instructs that, in construing a statute, the primary purpose is to give effect to the intent of the General Assembly. See 1 Pa.C.S. § 1921(a) (relating to legislative intent controls). In so doing, the practical results of a particular interpretation may be considered. See 1 Pa.C.S. § 1921(c)(6). Legislative intent may also be found in considering the occasion and necessity of the statute, the circumstances under which it was enacted, the objective to be attained, and Legislative and administrative interpretations of the statute. See 1 Pa.C.S. § 1921(c)(1), (2), (4) and (8).
The intention of the General Assembly is specifically spelled out in section 6302 of the CPSL. This section finds that abused children are in urgent need of an effective child protective service to prevent them from suffering further injury and impairment. One of the CPSL's stated purposes is to encourage more complete reporting of suspected child abuse. A further purpose of the CPSL is to investigate reports swiftly and competently.
The purpose of the CPSL is to bring about quick and effective reporting of suspected child abuse and to serve as a means for providing protective services competently and to prevent further abuse of the children while providing rehabilitative services for them and the parents. See In Interest of J. R. W., 631 A.2d. 1019 (Pa. Super. 1993). To accomplish this objective, the CPSL requires under the threat of criminal penalty, that health care professionals and others report suspected child abuse when they have reasonable cause to suspect, on the basis of their professional training or experience, that a child coming before them in their professional or official capacity is an abused child. The privileged communication between a professional person required to report and the patient or client of that person does not apply to situations involving child abuse and does not constitute grounds for failure to report as required. In turn, section 6318 of the CPSL, provides for immunity from liability for mandated reporters who participate in good faith in the making of a report and in cooperating with an investigation.
In construing this language, the appellate courts have held that the CPSL requires mandated reporters to immediately report suspected abuse. Courts have found that the urgency of prompt reporting is stressed throughout the provisions of the CPSL. Based on these findings, the courts have ruled that the CPSL may not envision any prereporting investigation conducted by mandated reporters, such as licensees of the Board, in order to give full effect to both a mandatory reporting provision and the immunity from liability. See Heinrich v. Conemaugh Valley Memorial Hospital, 648 A.2d 53 (Pa. Super. 1994); Brozovich v. Circle C Group Homes, Inc., 548 A.2d 698 (Pa. Cmwlth. 1988).
To encourage reporting and give effect to the immunity provisions, mandated reporters should have specific criteria regarding the standards by which reporting should be made. To do so, a reporter should not have to question whether a reporting procedure should be followed. The practical consequences of a regulatory provision which would allow a mandated reporter to make an independent determination of the environmental factors are both a protracted time in filing reports and fewer reports made. It is also likely that there will be uncertainty as to the good faith immunity from liability for those persons who do report and uncertainty as to the nature and degree of inquiry or investigation prior to the determination to file a report.
The Board believes that the Legislative purpose of the amendments to encourage prompt reporting by protecting reporters from meritless lawsuits is furthered by a rule which allows the reporter to exercise his best professional judgment as to the condition of the child and to allow the CYS agencies to determine whether environmental factors are the sole cause of the child's condition. To adopt IRRC's position that a professional may determine whether environmental factors justify not reporting appears, on balance, to be contrary to the intent and stated purpose of the CPSL, the statutory scheme and the purpose of these amendments.
§ 16.102. Mandated Reporting Requirements.
IRRC commented that proposed subsection (c) could be improved by restructuring the section to segregate the time frames for filing oral and written reports. The Board has adopted IRRC's suggested revised language.
Reporting requirements under § 16.102 provides Board regulated practitioners with ready access to the statutory provisions of section 6313 of the CPSL. Proposed subsection (d) required written reports on forms prescribed by the DPW by regulation. IRRC suggested Board regulated practitioners be informed as to how they could obtain forms. The Board has consulted with the DPW and inserted information in the textual form recommended by it. IRRC also suggested that the Board delete reference to DPW regulations which have not yet been promulgated. The Board concurs with the suggestion and has deleted this reference. IRRC also commented that subsection (d)(10), which mandates the reporting of information which the DPW may by regulation require, is vague and lacks specificity. This language is a statutory requirement and its inclusion parallels subsection (d)(1)--(9). Inclusion of the provisions of the CPSL pertaining to mandated reporters in the Board's regulations allows licensees ready access to statutory language. Therefore, no change in final rulemaking has been made.
§ 16.103. Photographs, Medical Tests and X-rays.
IRRC suggested an editorial change to § 16.103 (relating to photographs, medical tests and X-rays of child subject to report). The Board has made the change.
§ 16.102(b). Institutional Reporting Requirement.
IRRC also suggested an editorial change to the title of § 16.102(b) to more fully describe the entities covered by the section. IRRC's suggestion has been adopted in the final version.
§ 16.104. Suspected Death.
As proposed, § 16.104 (relating to suspected death as a result of child abuse--mandated reporting requirements) mirrored section 6317 of the CPSL (relating to mandatory reporting and post mortem investigation of deaths), which mandates reporting to the appropriate coroner where a mandated reporter has reasonable cause to suspect that a child has died as a result of child abuse.
IRRC suggested that the Board provide notice in the section to various provisions of the county codes which confer jurisdiction over coroner investigations to the situs of the death or the situs of the injury in the event death occurs in another county owing to a transfer for medical treatment.
The Board concurs with this suggestion and has added language to so notify Board regulated practitioners.
Reporting by School Employes
A commentator suggested that licensing boards review the reporting requirements in the CPSL for public and private school employes in Subchapter C.1 of the CPSL (relating to students in public and private schools). The substance and procedure of filing mandatory reports is different for professional mandated reporters under section 6311 of the CPSL compared with school employe mandated reporters under section 6352 of the CPSL (relating to school employes).
IRRC commented that a serious gap exists in the proposal because it fails to address the licensee's duties when the licensee is a school employe because as a school employe, a Board regulated practitioner would have: (a) a different standard to apply as to what must be reported; (b) a different standard as to who must be reported as to the suspected actor; and (c) different officials to whom reports must be made.
Owing to the substantial differences in the CPSL, IRRC recommended that the Board implement reporting requirements for licensees who are school employes in future proposed rulemaking. In reviewing this recommendation, the Board will continue to consult with the DPW concerning future proposed rulemaking covering school employes. Moreover, the Board has been informed that the Department of Education has issued an advisory bulletin informing schools that they are required to notify professional contractors or professional employes of their reporting obligations. Accordingly, the Board has agreed to defer further action on this issue in accordance with IRRC's suggestion.
E. Compliance with Executive Order 1996-1, Regulatory Review and Promulgation
The Board reviewed this rulemaking and considered its purpose and likely impact upon the public and the regulated population under the directives of Executive Order 1996-1, Regulatory Review and Promulgation. The final regulations address a compelling public interest as described in this Preamble and otherwise comply with Executive Order 1996-1.
F. Fiscal Impact and Paperwork Requirements
1. Commonwealth--The regulations which provide for disciplinary action against a licensee who fails to make mandatory reports may cause an increase in disciplinary actions and hence may have a fiscal impact on the overall cost of Board operations. The net effect, however, is expected to be minimal because the 1994 amendments as they pertain to mandated reporters are intended to encourage compliance.
2. Political subdivisions--There should be no adverse fiscal impact or additional paperwork requirements on political subdivisions.
3. Private sector--The regulations may heighten awareness of Board regulated practitioners as to the mandated reports required under the CPSL and may increase the number and completeness of filed reports, but should have no adverse fiscal impact.
G. Sunset Date
The Board continually monitors the effectiveness of its regulations through communications with the regulated population; accordingly, no sunset date has been set.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Board submitted a copy of the notice of proposed rulemaking, published at 26 Pa.B. 1014, to IRRC and the Chairpersons of the House Professional Licensure Committee and the Senate Consumer Protection and Professional Licensure Committee for review and comment. In compliance with section 5(b.1) of the Regulatory Review Act, the Board also provided IRRC and the Committees with copies of the comments received, as well as other documentation.
In preparing these final-form regulations, the Board has considered the comments received from IRRC, the Committees, individual Legislators and the public.
These final-form regulations were approved by the House Committee on October 1, 1996, and approved by the Senate Committee on September 25, 1996. IRRC met on October 3, 1996, and approved the regulations in accordance with section 5(c) of the Regulatory Review Act.
I. Contact Person
Further information may be obtained by contacting Cindy Warner, Administrative Assistant, State Board of Medicine, at P. O. Box 2649, Harrisburg, PA 17105-2649; (717) 783-1400.
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) These amendments do not enlarge the purpose of proposed rulemaking published at 26 Pa.B. 1014.
(4) These amendments are necessary and appropriate for administration and enforcement of the authorizing acts identified in Part B of this Preamble.
The Board, acting under its authorizing statutes, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 16, are amended by adding §§ 16.101--16.107 to read as set forth in Annex A.
(b) The Board shall submit this order and Annex A to the Office of General Counsel and to the Office of Attorney General as required by law.
(c) The Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect on publication in the Pennsylvania Bulletin.
CHARLES J. BANNON, M.D.,
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 26 Pa.B. 5270 (November 2, 1996).)
Fiscal Note: Fiscal Note 16A-492 remains valid for the final adoption of the subject regulations.
TITLE 49. PROFESSIONAL AND
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND
CHAPTER 16. STATE BOARD OF MEDICINE--GENERAL PROVISIONS
Subchapter G. MINIMUM STNADARDS OF PRACTICE--CHILD ABUSE REPORTING
16.101. Definitions. 16.102. Suspected child abuse--mandated reporting requirements. 16.103. Photographs, medical tests and X-rays of child subject to report. 16.104. Suspected death as a result of child abuse--mandated reporting requirement. 16.105. Immunity from liability. 16.106. Confidentiality--waived. 16.107. Noncompliance.
§ 16.101. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Board regulated practitioner--A medical doctor, physician assistant, nurse midwife, certified registered nurse practitioner, respiratory care practitioner, drugless therapist, acupuncturist or auxiliary personnel performing radiologic procedures on the premises of a medical doctor.
Child abuse--A term meaning any of the following:
(i) A recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child under 18 years of age.
(ii) An act or failure to act by a perpetrator which causes nonaccidental serious mental injury to or sexual abuse or sexual exploitation of a child under 18 years of age.
(iii) A recent act, failure to act or series of acts or failures to act by a perpetrator which creates an imminent risk of serious physical injury to or sexual abuse or sexual exploitation of a child under 18 years of age.
(iv) Serious physical neglect by a perpetrator constituting prolonged or repeated lack of supervision or the failure to provide the essentials of life, including adequate medical care, which endangers a child's life or development or impairs the child's functioning.
ChildLine--An organizational unit of the Department of Public Welfare which operates a 24-hour a day Statewide toll free telephone system for receiving reports of suspected child abuse, referring reports for investigation and maintaining the reports in the appropriate file.
Individual residing in the same home as the child--An individual who is 14 years of age or older and who resides in the same home as the child.
Perpetrator--A person who has committed child abuse and is a parent of the child, a person responsible for the welfare of a child, an individual residing in the same home as a child or a paramour of a child's parent.
Person responsible for the child's welfare--A person who provides permanent or temporary care, supervision, mental health diagnosis or treatment, training or control of a child in lieu of parental care, supervision and control. The term does not include a person who is employed by or provides services or programs in a public or private school, intermediate unit or area vocational-technical school.
Recent acts or omissions--Acts or omissions committed within 2 years of the date of the report to the Department of Public Welfare or county agency.
Serious mental injury--A psychological condition, as diagnosed by a physician or licensed psychologist, including the refusal of appropriate treatment, that does one or more of the following:
(i) Renders a child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic or in reasonable fear that the child's life or safety is threatened.
(ii) Seriously interferes with a child's ability to accomplish age-appropriate developmental and social tasks.
Serious physical injury--An injury that causes a child severe pain or significantly impairs a child's physical functioning, either temporarily or permanently.
Sexual abuse or exploitation--The employment, use, persuasion, inducement, enticement or coercion of a child to engage in or assist another person to engage in sexually explicit conduct or a simulation of sexually explicit conduct for the purpose of producing a visual depiction, including photographing, videotaping, computer depicting or filming, of sexually explicit conduct or the rape, sexual assault, involuntary deviate sexual intercourse, aggravated indecent assault, molestation, incest, indecent exposure, prostitution, statutory sexual assault or other form of sexual exploitation of children.
§ 16.102. Suspected child abuse--mandated reporting requirements.
(a) General rule. Under 23 Pa.C.S. § 6311 (relating to persons required to report suspected child abuse), Board regulated practitioners who, in the course of their employment, occupation or practice of their profession, come into contact with children shall report or cause a report to be made to the Department of Public Welfare when the Board regulated practitioners have reasonable cause to suspect on the basis of their professional or other training or experience, that a child coming before them in their professional or official capacity is a victim of child abuse.
(b) Staff members of public or private agencies, institutions and facilities. Board regulated practitioners who are staff members of a medical or other public or private institution, school, facility or agency, and who, in the course of their employment, occupation or practice of their profession, come into contact with children shall immediately notify the person in charge of the institution, school, facility or agency or the designated agent of the person in charge when they have reasonable cause to suspect on the basis of their professional or other training or experience, that a child coming before them in their professional or official capacity is a victim of child abuse. Upon notification by the Board regulated practitioner, the person in charge or the designated agent shall assume the responsibility and have the legal obligation to report or cause a report to be made in accordance with subsections (a), (c) and (d).
(c) Reporting procedure. Reports of suspected child abuse shall be made by telephone and by written report.
(1) Oral reports. Oral reports of suspected child abuse shall be made immediately by telephone to ChildLine (800) 932-0313.
(2) Written reports. Written reports shall be made within 48 hours after the oral report is made by telephone. Written reports shall be made on forms available from a county children and youth social service agency.
(d) Written reports. Written reports shall be made in the manner and on forms prescribed by the Department of Public Welfare. The following information shall be included in the written reports, if available:
(1) The names and addresses of the child and the parents or other person responsible for the care of the child, if known.
(2) Where the suspected abuse occurred.
(3) The age and sex of the subjects of the report.
(4) The nature and extent of the suspected child abuse including any evidence of prior abuse to the child or siblings of the child.
(5) The name and relationship of the persons responsible for causing the suspected abuse, if known, and any evidence of prior abuse by those persons.
(6) Family composition.
(7) The source of the report.
(8) The person making the report and where that person can be reached.
(9) The actions taken by the reporting source, including the taking of photographs and X-rays, removal or keeping of the child or notifying the medical examiner or coroner.
(10) Other information which the Department of Public Welfare may require by regulation.
§ 16.103. Photographs, medical tests and X-rays of child subject to report.
A Board regulated practitioner may take or cause to be taken photographs of the child who is subject to a report and, if clinically indicated, cause to be performed a radiological examination and other medical tests on the child. Medical summaries or reports of the photographs, X-rays and relevant medical tests taken shall be sent to the county children and youth social service agency at the time the written report is sent or as soon thereafter as possible. The county children and youth social service agency shall have access to actual photographs or duplicates and X-rays and may obtain them or duplicates of them upon request.
§ 16.104. Suspected death as a result of child abuse--mandated reporting requirement.
A Board regulated practitioner who has reasonable cause to suspect that a child died as a result of child abuse shall report that suspicion to the coroner of the county where death occurred or, in the case where the child is transported to another county for medical treatment, to the coroner of the county where the injuries were sustained.
§ 16.105. Immunity from liability.
Under 23 Pa.C.S. § 6318 (relating to immunity from liability), a Board regulated practitioner who participates in good faith in the making of a report, cooperating with an investigation, testifying in a proceeding arising out of an instance of suspected child abuse or the taking of photographs shall have immunity from civil and criminal liability that might result by reason of the Board regulated practitioner's actions. For the purpose of any civil or criminal proceeding, the good faith of the Board regulated practitioner shall be presumed. The Board will uphold the same good faith presumption in any disciplinary proceeding that might result by reason of a Board regulated practitioner's actions in participating in good faith in the making of a report, cooperating with an investigation, testifying in a proceeding arising out of an instance of suspected child abuse or the taking of photographs.
§ 16.106. Confidentiality--waived.
To protect children from abuse, the reporting requirements of §§ 16.102--16.104 (relating to suspected child abuse--mandated reporting requirements; photographs, medical tests and X-rays of child subject to report; and suspected death as a result of child abuse--mandated reporting requirement) take precedence over any ethical principles or professional standard that might otherwise apply.
§ 16.107. Noncompliance.
(a) Disciplinary action. A Board regulated practitioner who willfully fails to comply with the reporting requirements in §§ 16.102--16.104 (relating to suspected child abuse--mandated reporting requirements; photographs, medical tests and X-rays of child subject to report; and suspected death as a result of child abuse--mandated reporting requirement) will be subject to disciplinary action under section 41 of the act (63 P. S. § 422.41).
(b) Criminal penalties. Under 23 Pa.C.S. § 6319 (relating to penalties for failure to report), a Board regulated practitioner who is required to report a case of suspected child abuse who willfully fails to do so commits a summary offense for the first violation and a misdemeanor of the third degree for a second or subsequent violation.
[Pa.B. Doc. No. 96-1875. Filed for public inspection November 8, 1996, 9:00 a.m.]
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