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The Oregon Administrative Rules contain OARs filed through March 15, 2014
 
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OREGON HEALTH AUTHORITY,
ADDICTIONS AND MENTAL HEALTH DIVISION: ADDICTION SERVICES

 

DIVISION 65

HEALTH PROFESSIONALS' SERVICES PROGRAM

415-065-0005

Purpose, Intent and Scope

The purpose of these rules is to establish a consolidated, statewide health professionals’ monitoring program for licensees of participating health licensing boards, as required by ORS 676.190, who are unable to practice with professional skill and safety due to substance use disorders, mental health disorders, or both types of disorders. The program shall provide non-treatment compliance monitoring and reporting services.

Stat. Auth.: ORS 413.042 & ORS 676.190
Stats. Implemented: ORS 676.185 to 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10

415-065-0010

Definitions

The following terms mean:

(1) “Admitted to the hospital for mental illness” for purposes of ORS 676.190 means admitted to the hospital for treatment of a mental health disorder that gives rise to concerns about the licensee’s ability or willingness to participate in the program. Admission for evaluation or diagnosis does not constitute being admitted to the hospital for mental illness.

(2) “Assessment or evaluation” means the process an independent third-party evaluator uses to diagnose the licensee and to recommend treatment options for the licensee.

(3) “Authority” means the Oregon Health Authority.

(4) “Board” means a health professional regulatory board as defined in ORS 676.160 or the Oregon Health Licensing Agency for a board, council or program listed in 676.606.

(5) “Business day” means Monday through Friday, 8:00 a.m. to 5:00 p.m. Pacific Time, except legal holidays as defined in ORS 187.010 or 187.020.

(6) “Comply Continuously” means to have been:

(a) Enrolled in the program for at least two uninterrupted years without any reports of substantial noncompliance involving significant violations of the monitoring agreement and

(b) Deemed by the contractor if self-referred, or by the licensee’s board if board referred, to have otherwise successfully complied with all terms of the monitoring agreement.

(7) “Contractor” means the entity that has contracted with the Division to conduct the program.

(8) "Diagnosis" means the principal mental health or substance use diagnosis listed in the DSM. The diagnosis is determined through the assessment and any examinations, tests or consultations suggested by the assessment and is the medically appropriate reason for services.

(9) "Division" means the Oregon Health Authority, Addictions and Mental Health Division.

(10) "DSM" means the Diagnostic and Statistical Manual of Mental Disorders-IV-R, published by the American Psychiatric Association.

(11) “Family" means any natural, formal, or informal support persons identified as important by the licensee.

(12) “Federal regulations” means:

(a) As used in ORS 676.190(1)(f)(D), a “positive toxicology test result as determined by federal regulations pertaining to drug testing” means test results meet or exceed the cutoff concentrations shown in 49 CFR § 40.87 (2009) for the substances listed there.

(b) As used in ORS 676.190(4)(i), requiring a “licensee to submit to random drug or alcohol testing in accordance with federal regulations” means licensees are selected for random testing by a scientifically valid method, such as a random number table or a computer-based random number generator that is matched with licensees’ unique identification numbers or other comparable identifying numbers. Under the selection process used, each covered licensee shall have an equal chance of being tested each time selections are made, as described in 49 CFR § 199.105(c)(5)(2009). Random drug tests must be unannounced and the dates for administering random tests must be spread reasonably throughout the calendar year, as described in 49 CFR § 199.105(c)(7)(2009).

(13) “Fitness to practice evaluation” means the process a qualified, independent third-party evaluator uses to determine if the licensee can safely perform the essential functions of the licensee’s health practice.

(14) “Independent third-party evaluator” means an individual who is approved by a licensee’s board to evaluate, diagnose, and offer treatment options for substance use disorders, mental health disorders, or co-occurring disorders.

(15) “Individual service record” means the official permanent program documentation, written or electronic, for each licensee, which contains all information required by these rules and maintained by the program to demonstrate compliance with these rules

(16) “Licensee” means a health professional who is licensed or certified by or registered with a board and the professional is receiving services in the program under these rules.

(17) “Mental health disorder” means a clinically significant behavioral or psychological syndrome or pattern that occurs in an individual and that is associated with present distress or disability or with a significantly increased risk of suffering death, pain, disability, or an important loss of freedom that is identified in the DSM. “Mental health disorder” includes gambling disorders.

(18) “Monitoring agreement” means an individualized agreement between a licensee and the contractor that meets the requirements for a diversion agreement set by ORS 676.190.

(19) “Non-treatment compliance monitoring” means the non-medical, non-therapeutic services employed by the contractor to track and report the licensee’s compliance with the monitoring agreement.

(20) “Peer” means another licensee currently enrolled in the program.

(21) “Provisional enrollment” means temporary enrollment, pending verification that a self-referred licensee meets all program eligibility criteria.

(22) “Self-referred licensee” means a licensee who seeks to participate in the program without a referral from the board.

(23) "Substance Use Disorders" means disorders related to the taking of a drug of abuse including alcohol, to the side effects of a medication, and to a toxin exposure. The disorders include substance use disorders such as substance dependence and substance abuse, and substance-induced disorders, including substance intoxication, withdrawal, delirium, and dementia, as well as substance induced psychotic disorder, mood disorder and other disorders, as defined in DSM criteria.

(24) “Substantial non-compliance” means that a licensee is in violation of the terms of his or her monitoring agreement in a way that gives rise to concerns about the licensee’s ability or willingness to participate in the program. Substantial non-compliance and non-compliance include, but are not limited to, the factors listed in ORS 676.190(1)(f). Conduct that occurred before a licensee entered into a monitoring agreement does not violate the terms of that monitoring agreement.

(25) “Successful completion” means that for the period of service deemed necessary by the contractor or by the licensee’s board by rule, the licensee has complied with the licensee’s monitoring agreement to the satisfaction of the program, and has met the terms of the fee agreement between the program and the licensee.

(26) “Toxicology testing” means urine testing or alternative chemical monitoring including but not limited to blood, saliva, hair or breath.

(27) "Treatment" means the planned, specific, individualized health and behavioral-health procedures, activities, services and supports that a treatment provider uses to remediate symptoms of a substance use disorder, mental health disorder or both types of disorders.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 3-2011, f. & cert. ef. 8-16-11; ADS 2-2012, f. & cert. ef. 2-9-12; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12

415-065-0015

Clinical Council

(1) The Division, in collaboration with the boards, may establish a Clinical Council that provides clinical guidance and advice to the contractor, in light of evidenced-based research and data about substance use disorders, mental health disorders or both types of disorders.

(2) The Clinical Council shall consist of eight members. The Division shall appoint one member and the boards, in consultation with the Division, shall appoint seven members.

(3) The Clinical Council shall select a chairperson from among its members.

(4) To be eligible for appointment to the Clinical Council, an individual must be a resident of Oregon and must have expertise in the recognition, intervention, assessment and treatment of persons who have a substance use disorders, mental health disorders or both types of disorders.

(5) In recruiting and selecting members for the Clinical Council, the Division and the boards shall seek members who have expertise with a range of culturally appropriate treatment options for people with substance use disorders, mental health disorders or both types of disorders.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 3-2011, f. & cert. ef. 8-16-11; ADS 2-2012, f. & cert. ef. 2-9-12

415-065-0020

Audits

(1) The Division shall arrange for an independent third-party every four years to audit the program and to ensure compliance with the program guidelines.

(2) The Division shall report the results of the audit to the Legislative Assembly, the Governor, and the boards.

(3) The Division’s report may not contain individually identifiable information about the licensees.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12; ADS 7-2013(Temp), f. & cert. ef. 11-8-13 thru 5-7-14

415-065-0025

Record Maintenance and Disposition

(1) If the contractor discontinues operations, the contractor shall transfer the individual service records and the program service records to the Division.

(2) The Division shall identify a records administrator, who is responsible for:

(a) Assuring compliance with 42 CFR § 2.19 and other applicable state and federal regulations;

(b) Keeping the transferred individual service records consistent with the applicable records retention schedule; and

(c) With a licensee’s written consent, transferring individual service records to another contractor.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 2-2012, f. & cert. ef. 2-9-12

415-065-0030

Administration Fee

(1) Each board that participates in the program shall pay the Division a fee for participating in the program.

(2) The Division shall calculate the total fee based on all the contractor costs and administration expenses, including but not limited to, Division personnel costs and ancillary expenses, and fees paid to the contractor and auditor.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 2-2012, f. & cert. ef. 2-9-12; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12

415-065-0035

Board Referrals

(1) A board that refers a licensee to the program must make the referral in writing. The referral must include:

(a) A copy of a report from an independent third-party evaluator who diagnosed the licensee with a substance use disorder, a mental health disorder or both types of disorder, stating the diagnosis and the applicable diagnostic code from the DSM;

(b) The treatment options developed by the independent third-party evaluator;

(c) A statement that the board has investigated the licensee’s professional practice and has determined whether the licensee’s professional practice, while impaired, presents or has presented a danger to the public;

(d) A description of any restrictions imposed by the board or recommended by the board on the licensee’s professional practice;

(e) A statement that the licensee has agreed to report any arrest for or conviction of a misdemeanor or felony crime to the board within three business days after the licensee is arrested or convicted; and

(f) A written statement from the licensee agreeing to enter the program and agreeing to abide by all terms and conditions established by the contractor.

(2) A board-referred licensee is enrolled in the program effective on the date the contractor receives the licensee’s signed consents and the monitoring agreement including payment of fees as required by ORS 676.190.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 2-2012, f. & cert. ef. 2-9-12; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12

415-065-0040

Self-Referrals

(1) Provisional Enrollment. To be provisionally enrolled in the program, a self-referred licensee must:

(a) Sign a written consent allowing disclosure and exchange of information between the contractor, the licensee’s employer, independent third-party evaluators, and treatment providers;

(b) Sign a written consent allowing disclosure and exchange of information between the contractor, the board, the licensee’s employer, independent third-party evaluators and treatment providers in the event the contractor determines the licensee to be in substantial noncompliance with his or her monitoring agreement. The purpose of the disclosure is to permit the contractor to notify the board if the contractor determines the licensee to be in substantial non-compliance with his or her monitoring agreement;

(c) Sign a written statement that the licensee has agreed to report any arrest for or conviction of a misdemeanor or felony crime to the contractor within three business days after the licensee is arrested or convicted;

(d) Attest that the licensee is not, to the best of the licensee’s knowledge, under investigation by his or her board; and

(e) Agree to and sign a monitoring agreement.

(2) Enrollment: To move from provisional enrollment to enrollment in the program, a self-referred licensee must:

(a) Obtain at the licensee’s own expense and provide to the contractor, an independent third-party evaluator’s written evaluation containing a DSM diagnosis and diagnostic code and treatment recommendations;

(b) Agree to cooperate with the contractor’s investigation to determine whether the licensee’s practice while impaired presents or has presented a danger to the public; and

(c) Enter into an amended monitoring agreement, if required by the contractor.

(3) Once a contractor provisionally enrolls a self-referred licensee in the program failure to complete enrollment may constitute substantial non-compliance and may be reported to the board.

(4) The program may not report a self-referred licensee’s enrollment in or successful completion of the program to the licensee’s board.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 2-2012, f. & cert. ef. 2-9-12; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12

415-065-0045

Licensee Responsibilities

(1) Board-referred licensees must:

(a) Comply continuously with his or her monitoring agreement, including any restrictions on his or her practice, for at least two years or longer, as specified by the board by rule or order; and

(b) Be responsible for the cost of evaluations, toxicology testing and treatment.

(2) Self-referred licensees must:

(a) Provide to the contractor a copy of a report of the licensee’s criminal history periodically, as required by the contractor;

(b) Comply continuously with his or her monitoring agreement, including any restrictions on his or her practice, for at least two years or longer, as specified by the board by rule or order; and

(c) Be responsible for the cost of evaluations, toxicology testing and treatment.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 2-2012, f. & cert. ef. 2-9-12

415-065-0050

Unique Identification Number

(1) The contractor shall assign a unique licensee identification number to each licensee the contractor enrolls in the program:

(a) The contractor and the Division shall use the same number and shall include the number in any communications or data exchanges involving the licensee;

(b) The contractor shall not assign the identification number to any other licensee enrolled in the program;

(c) The contractor shall retire the number when the licensee is no longer enrolled in the program; and

(d) The contractor shall reassign the number to the licensee if the contractor reenrolls the licensee at a later date.

(2) The contractor may not use all or a portion of a licensee’s social security number as the unique identification number.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 2-2012, f. & cert. ef. 2-9-122; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12

415-065-0055

Program Requirements

The contractor shall:

(1) Inform the licensee about the program services, requirements, benefits, risks, and confidentiality limitations and ensure that the licensee has signed a consent for services. The consent for services explains:

(a) Information the contractor will give to the board and under what circumstances;

(b) That the board may take action to suspend, restrict, modify, or revoke the licensee’s license or end the licensee’s participation in the program based on information from the contractor.

(2) Enter into a monitoring agreement with the licensee;

(3) Assess the licensee’s compliance with his or her monitoring agreement;

(4) Assess the ability of the licensee’s employer, when an employer exists, to supervise the licensee and an assessment of any documentation of the direct supervisor’s completion of licensee supervision specialized training;

(5) Report the licensee’s substantial noncompliance with his or her monitoring agreement to a noncompliant licensee’s board within one business day after the contractor learns of any substantial noncompliance; and

(6) At least weekly, submit to licensees’ boards:

(a) A list of licensees who were referred to the program by the health profession licensing board and who are enrolled in the program; and

(b) A list of licensees who were referred to the program by the health profession licensing board and who successfully completed the program.

(7) The lists submitted under section 6(a)(b) are exempt from disclosure as a public record under ORS 192.140 to 192.505.

(8) Seek a court order authorizing the contractor to release identifying information to a licensee’s board, including a report of substantial noncompliance as is described in OAR 415-065-0060, if a self-referred licensee enrolled in the program, or a provisionally enrolled licensee with a qualifying diagnosis, revokes his or her consent to report substantial noncompliance to the licensee’s board.

(a) The contractor shall file documents with the court seeking a court order as soon as possible but no later than three business days from the date it was notified that the licensee revoked consent to report substantial noncompliance.

(b) The contractor shall comply with 42 USC & 290dd-2(b)(2); 42 CFR Part 2; the Health Insurance Portability and Accountability Act (HIPAA), Public Law 104-191, 45 CFR Parts 160, 162 and 164 and ORS 179.505, 192.518–192.524 in seeking such a court order.

(c) The contractor shall disclose to the licensee’s board, within one (1) business day, any information the court authorizes it to disclose.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 1-2011(Temp), f. & cert. ef. 2-11-11 thru 8-5-11; ADS 3-2011, f. & cert. ef. 8-16-11; ADS 2-2012, f. & cert. ef. 2-9-122; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12; ADS 7-2013(Temp), f. & cert. ef. 11-8-13 thru 5-7-14

415-065-0060

Reports of Substantial Noncompliance

(1) Unless otherwise prohibited by law, when the contractor reports a licensee’s substantial noncompliance to a licensee’s board, the report shall include:

(a) A description of the noncompliance;

(b) A copy of the report from the independent third-party evaluator who diagnosed the licensee stating the licensee’s diagnosis;

(c) A copy of the licensee’s monitoring agreement; and

(d) The licensee’s practice or employment status.

(2) The contractor may report substantial noncompliance directly to the licensee’s board.

(3) The contractor and the licensee’s board may also exchange information in the absence of substantial noncompliance, consistent with the licensee’s consent to disclose information.

(4) A positive toxicology result as determined by 49 CFR § 40.87 (2009) must be reported as substantial non-compliance, but positive toxicology results for other drugs and for alcohol may also constitute and may be reported as substantial non-compliance

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 2-2012, f. & cert. ef. 2-9-122; ADS 3-2012, f. 6-27-12, cert. ef. 7-1-12

415-065-0065

Program Services

The contractor shall provide the following services:

(1) Safe Practice Investigations of Self-referred Licensees:

(a) The contractor shall conduct a focused safe-practice investigation of a self-referred licensee to determine whether the licensee’s practice while impaired presents or has presented a danger to the public. The investigation may include contractor interviews with the licensee’s employer, supervisor, co-workers, family, or significant others.

(b) The contractor shall complete the safe-practice investigation within 15 business days of the contractor’s receipt of the independent third party’s evaluation with a qualifying diagnosis. The licensee remains provisionally enrolled in the program during this process.

(2) Monitoring Agreements:

(a) The contractor shall develop and the licensee shall sign an individualized, written monitoring agreement that is consistent with the independent third-party’s evaluation and treatment recommendations unless otherwise authorized by the appropriate board, and on any other relevant and appropriate information, which may include information from employers, supervisors, co-workers, family, and significant others.

(b) The contractor shall amend the monitoring agreement as necessary to respond to changes in the licensee’s situation, with the goal of protecting the public, except that the contractor shall not amend the treatment plan established by the independent third-party evaluation unless authorized by the appropriate board to do so.

(c) The contractor shall give the licensee and their employer, when an employer exists, a copy of the licensee’s monitoring agreement, including any amendments, and shall immediately place a copy of the monitoring agreement, including any amendments, in the licensee’s individual service record.

(d) The monitoring agreement shall:

(A) Require the licensee to participate in the program for at least two years or longer, as specified by board rule or order;

(B) Require the licensee to participate in a treatment provider’s treatment plan;

(C) Outline the limits on the licensee’s health profession practice by the contractor and the board;

(D) Notify the licensee that the program, in its discretion, may require the licensee to obtain an evaluation of the licensee’s fitness to practice before the program removes limits on the licensee’s health profession practice;

(E) Outline methods for the licensee’s employer to monitor and report on the licensee’s safe practice;

(F) Based on the independent third-party evaluator’s evaluation, require the licensee to abstain from all mind-altering or intoxicating substances or potentially addictive drugs, unless, when authorized by the appropriate board to approve drugs, the program approves the licensee to use a particular drug prescribed for the licensee by a person authorized by law to prescribe for the licensee’s documented medical condition;

(G) Require the licensee to report to the program the licensee’s use of mind-altering or intoxicating substances or potentially addictive drugs within 24 hours of the licensee’s use of the substances or drugs;

(H) Require the licensee to submit to random toxicology testing, per an individualized schedule;

(I) Require the licensee to report his or her arrest for or conviction of a misdemeanor or felony crime to the contractor within three business days if the licensee is arrested or convicted;

(J) Require the licensee to report to the contractor any of the licensee’s applications for licensure in other states, changes in employment, changes in practice setting, and changes in residence;

(K) Require the licensee to report at least weekly to the program regarding the licensee’s compliance with the agreement; and

(L) Require the licensee to attend compliance consultation group meetings on an individualized schedule based on the contractor’s assessment of the licensee’s need for additional accountability and structure and based on board’s monitoring requirements.

(e) Boards may provide other requirements by rule, including allowing for practice supervision of sole practice licensees or other licensees not in an employment setting.

(3) Compliance Consultation Group Meetings. If required by a board’s rules, a licensee identified by the board must attend compliance consultation group meetings. Any board-referred or self-referred licensee may elect to attend the meetings. There may be a fee for the meetings.

(a) The contractor shall conduct or arrange for non-treatment compliance consultation group meetings in which a monitoring consultant meets face-to-face, either directly or by tele-video, with licensees identified by a board to determine the licensee’s overall compliance with his or her monitoring agreement and for the licensee to gain peer support for his or her compliance efforts.

(b) A monitoring consultant shall conduct each compliance consultation group meeting.

(c) The monitoring consultants shall assess the licensee’s progress with his or her monitoring agreement and provide holistic progress reports to the contractor regarding the licensee’s status in relation to, but not limited to, his or her: compliance with the monitoring agreement, compliance with the treatment provider’s treatment plan, recovery activities, emotional and physical health, work-place dynamics, and relationship and boundary concerns.

(d) The licensee’s board may elect to pay for the licensee’s participation in the compliance consultation group meetings or the board may require the licensee to pay for the service.

(4) Toxicology Testing. Unless the licensee is diagnosed solely with a mental health disorder and an independent third-party evaluator has not recommended toxicology testing, the contractor shall ensure that:

(a) The licensee receives a baseline toxicology test within five business days of the date the contractor enrolls the licensee in the program;

(b) The licensee receives a final toxicology test before the licensee is deemed to successfully complete the program;

(c) All monitoring agreements contain provisions requiring three types of toxicology testing:

(A) Testing customized to the licensee’s circumstances, including where appropriate requiring expanded toxicology testing drug panels and long-acting alcohol consumption toxicology testing;

(B) Random testing; and

(C) Testing that is required when the contractor has reason to believe that the licensee may have used alcohol or other drugs in violation of the licensee’s monitoring agreement.

(d) The contractor's toxicology testing laboratory is certified by the Substance Abuse and Mental Health Services Administration and accredited through the College of American Pathologists Forensic Drug Testing Accreditation Program.

(e) In addition, the laboratory shall perform testing in compliance with OAR 333-024-0305 through 333-024-0350.

(f) Urinalysis specimens are collected in a way that preserves the integrity of the specimen. Unless otherwise provided by the licensee's board by rule, the person collecting the sample must be able to see the licensee void.

(g) If the contractor suspects that the licensee has used alcohol or other drugs in violation of the licensee's monitoring agreement or suspects that the licensee has attempted to provide a false or dilute urine sample, the licensee may be required to provide a directly observed urine specimen under the procedures described in 49 CFR 40.67(g) through (k), including:

(A) A person of the same gender as the licensee must ask the licensee to raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist, and lower clothing and underpants to demonstrate, by turning around, that the licensee does not have a prosthetic device to dispense urine; and

(B) A person of the same gender as the licensee must watch the urine go from the licensee's body into the specimen collection container.

Stat. Auth.: ORS 413.042 & 676.190
Stats. Implemented: ORS 676.185 - 676.200
Hist.: ADS 3-2010, f. & cert. ef. 7-1-10; ADS 2-2012, f. & cert. ef. 2-9-12; ADS 7-2013(Temp), f. & cert. ef. 11-8-13 thru 5-7-14

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