Legislature(2007 - 2008)SENATE FINANCE 532

03/04/2008 09:00 AM Senate FINANCE


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ HB 176 CREATE FORT ROUSSEAU CAUSEWAY PARK TELECONFERENCED
Moved CSHB 176(RES) Out of Committee
+= SB 170 INSURANCE COVERAGE FOR WELL-BABY EXAMS TELECONFERENCED
Moved CSSB 170(FIN) Out of Committee
+ SB 28 LIMIT OVERTIME FOR REGISTERED NURSES TELECONFERENCED
Heard & Held
+= SB 249 CAPSTONE AVIONICS FUND/LOANS TELECONFERENCED
Scheduled But Not Heard
+ Bills Previously Heard/Scheduled TELECONFERENCED
SENATE BILL NO. 28                                                                                                            
                                                                                                                                
     "An Act  relating to  limitations on mandatory  overtime                                                                   
     for registered  nurses and licensed practical  nurses in                                                                   
     health care  facilities; and providing for  an effective                                                                   
     date."                                                                                                                     
                                                                                                                                
9:42:43 AM                                                                                                                    
                                                                                                                                
SENATOR BETTYE DAVIS, SPONSOR, introduced SB 28.                                                                                
                                                                                                                                
TOM OBERMEYER, STAFF, SENATOR  DAVIS, observed that SB 28 was                                                                   
modeled after  Congressional Resolution  #791.  He  read from                                                                   
the sponsor statement:                                                                                                          
                                                                                                                                
     SB 28,  hereafter also to  be known as "The  Alaska Safe                                                                   
     Nursing   and  Patient   Care   Act,"  prevents   Alaska                                                                   
     registered  and  licensed  practical nurses  from  being                                                                   
     forced to  work mandatory overtime, i.e.,  compulsory as                                                                   
     opposed  to voluntary work  in excess  of an agreed  to,                                                                   
     predetermined,   regularly  scheduled   shift,  and   it                                                                   
     protects patients from the  dangers caused by overworked                                                                   
     nurses.    Too often  Alaska's  nurses  are  overworked,                                                                   
     underpaid, and  undervalued. This bill will  improve the                                                                   
     lives  of  nurses and  their  families and  enhance  the                                                                   
     quality  of  patient  care  in  communities  across  the                                                                   
     state.  It will let  nurses decide  if they can  provide                                                                   
     their same  quality care  while working overtime.  SB 28                                                                   
     strictly  limits  the  use  of  mandatory  overtime  for                                                                   
     nurses  to  situations in  which  an official  state  of                                                                   
     emergency  is  declared by  federal,  state  or a  local                                                                   
     government,  or   other  stated  exceptions.   It  does,                                                                   
     however, allow nurses to  work overtime voluntarily when                                                                   
     they  feel they can  continue to  provide safe,  quality                                                                   
     care.    This  legislation  also  protects  nurses  from                                                                   
     discrimination   and   retaliation  by   employers   who                                                                   
     continue to  force them into  working hours  beyond what                                                                   
     they  believe safe  for quality  care.   SB 28  requires                                                                   
     that  health  care  facilities  monitor,  document,  and                                                                   
     report  overtime  semiannually  and face  penalties  for                                                                   
     knowing  violations.    Faced   with  nursing  shortages                                                                   
     nationwide,  Alaska  needs   to  encourage  and  support                                                                   
     nurses to enter  and stay in the profession.  SB 28 is a                                                                   
     long overdue step in that direction.                                                                                       
                                                                                                                                
9:49:18 AM                                                                                                                    
                                                                                                                                
Senator  Olson asked  if the  provision  effected all  nurses                                                                   
regardless of  classification.  Mr. Obermeyer  clarified that                                                                   
the  bill includes  all  licensed  practical  nurses and  all                                                                   
registered nurses with some exceptions.                                                                                         
                                                                                                                                
Senator  Olson   asked  if  rural  hospitals   had  expressed                                                                   
concerns regarding  mandatory overtime.   Mr. Obermeyer  said                                                                   
he had  not heard from rural  areas. He commented  that there                                                                   
were members  of nurse's organizations  in the  audience that                                                                   
could respond to  the question.  Senator Davis  observed that                                                                   
there had  been no testifiers  from rural communities  in any                                                                   
of the previous committee hearings.                                                                                             
                                                                                                                                
Senator Olson  stressed that unanticipated delays  can happen                                                                   
in  rural areas.    He described  situations  that would  not                                                                   
allow for the 10 hour rest requirement,  specifically medical                                                                   
airlift situations.  Mr. Obermeyer  explained that there were                                                                   
changes made  to SB 28  to accommodate emergency  situations,                                                                   
specifically medical airlift situations.                                                                                        
                                                                                                                                
Co-Chair  Stedman asked  if the legislation  would provide  a                                                                   
management  tool to reduce  the nursing  gap.  Senator  Davis                                                                   
differed to the nurses association.                                                                                             
                                                                                                                                
Co-Chair  Stedman  asked  if  the  mandatory  overtime  is  a                                                                   
negotiated labor issue.                                                                                                         
                                                                                                                                
Senator Davis  said the  issue should  be worked out  between                                                                   
employer  and employee,  but acknowledged  that this  was not                                                                   
happening.  Nurses maintain  that  they are  putting in  more                                                                   
hours than is appropriate, hence the need for legislation.                                                                      
                                                                                                                                
9:53:03 AM                                                                                                                    
                                                                                                                                
Co-Chair Stedman  asked if the provision would  alleviate the                                                                   
nursing shortage.   Senator Davis  responded that,  though it                                                                   
might not alleviate  the situation, it may  promote retention                                                                   
of nurses in Alaska.                                                                                                            
                                                                                                                                
Senator  Steadman asked  who opposes  SB 28.   Senator  Davis                                                                   
observed that that the Alaska  State and Hospital and Nursing                                                                   
Home Association  (ASHNHA) would be testifying  in opposition                                                                   
to the bill.                                                                                                                    
                                                                                                                                
Senator  Steadman  questioned  the Department  of  Labor  and                                                                   
Workforce Development's fiscal  note for $97.2 thousand for a                                                                   
new  wage  and  hour investigator.    He  expected  that  the                                                                   
Committee would look at zeroing out the fiscal note.                                                                            
                                                                                                                                
GREY  MITCHELL,  DIRECTOR,  DIVISION  OF  LABOR  STANDARDS  &                                                                   
SAFETY,  DEPARTMENT  OF  LABOR   &  WORK  FORCE  DEVELOPMENT,                                                                   
addressed the  $97.2 thousand  fiscal note. He  explained the                                                                   
fiscal note represents  the cost of one investigator  to deal                                                                   
with complaints from nurses regarding  mandatory overtime and                                                                   
discrimination  issues.  He  said, as  of February  28, 2008,                                                                   
there  are potentially  10,000 complainants.   He  maintained                                                                   
that  the  fiscal  note  is  conservative   in  view  of  the                                                                   
potential amount of complaints.                                                                                                 
                                                                                                                                
9:55:21 AM                                                                                                                    
                                                                                                                                
Co-Chair  Stedman asked  if the  Department  supports SB  28.                                                                   
Mr.  Mitchell said  the  Department has  no  position on  the                                                                   
bill.                                                                                                                           
                                                                                                                                
Senator Huggins asked if the provision  is precedent setting.                                                                   
He further inquired  if there are other  mechanisms available                                                                   
to  the  Department   to  address  the  issue   of  mandatory                                                                   
overtime.                                                                                                                       
                                                                                                                                
9:59:54 AM                                                                                                                    
                                                                                                                                
Mr. Mitchell  said he  could not  suggest another  mechanism.                                                                   
He explained that  if the provision is enacted  the burden of                                                                   
enforcement falls  on the Department  of Labor  and Workforce                                                                   
Development, as outlined in the provision.                                                                                      
                                                                                                                                
Senator Huggins asked  if there are any innovative  ideas for                                                                   
addressing the issue.                                                                                                           
                                                                                                                                
Co-Chair  Hoffman addressed  the fiscal  note and asked  what                                                                   
the $19.1 thousand under contractual represented.                                                                               
                                                                                                                                
10:01:58 AM                                                                                                                   
                                                                                                                                
Mr. Mitchell  explained that the contractual  line represents                                                                   
a  wide range  of  overhead costs.    He clarified  that  the                                                                   
Department is not contracting with any entity.                                                                                  
                                                                                                                                
Senator  Olson asked  how many  complaint  actions have  been                                                                   
brought  to the  Department.   Mr. Mitchell  said there  were                                                                   
approximately 500 wage claims filed per year.                                                                                   
                                                                                                                                
Senator  Elton asked  how many  wage  and hour  investigators                                                                   
were employed  by the  Department.   Mr. Mitchell said  there                                                                   
are 10 wage and hour investigators statewide.                                                                                   
                                                                                                                                
Senator  Elton  reasoned  that   additional  responsibilities                                                                   
added to the  position would result in a 10  percent increase                                                                   
in the work  load.  Mr.  Mitchell said that was  a reasonable                                                                   
approximation.                                                                                                                  
                                                                                                                                
Senator  Elton surmised  that if  investigators were  located                                                                   
around the  State and no position  was added, the  travel and                                                                   
contractual  component would  be unnecessary.   Mr.  Mitchell                                                                   
said   the   travel   component   would   be   necessary   as                                                                   
investigators  need  to  travel  to  investigate  complaints.                                                                   
Discrimination  cases  in particular  require  travel to  the                                                                   
place where the complaint initiates.                                                                                            
                                                                                                                                
Senator  Elton ascertained  that if  there are  investigators                                                                   
available  around the state  it would  preclude the  need for                                                                   
travel  funds.     Mr.  Mitchell  agreed  that   was  a  fair                                                                   
assessment.                                                                                                                     
                                                                                                                                
10:05:13 AM                                                                                                                   
                                                                                                                                
Senator  Thomas asked  if  the  fines imposed  in  SB 28  are                                                                   
standard for wage violations.                                                                                                   
                                                                                                                                
Mr.  Mitchell said  the fines  proposed  in SB  28 are  civil                                                                   
fines.   There are  no civil  fines pursued  by the  Wage and                                                                   
Hour Division  under the wage  enforcement requirements.   In                                                                   
cases  where  an  employee  does not  get  paid  overtime  or                                                                   
minimum wage, the statute provides  for liquidated damages to                                                                   
be paid  to the employee.   The difference  in SB 28  is that                                                                   
civil penalties  would be  applied to  those in violation  of                                                                   
the provision to be paid to the state.                                                                                          
                                                                                                                                
10:06:49 AM                                                                                                                   
                                                                                                                                
RON  ADLER,  CHIEF  EXECUTIVE   OFFICER,  ALASKA  PSYCHIATRIC                                                                   
INSTITUTE,  (API),  testified  via teleconference.  He  noted                                                                   
that API is  neutral on the bill.   He explained that  if the                                                                   
provision  passed  there  would   be  ramifications  for  the                                                                   
hospital.    He  informed  the   Committee  that  prospective                                                                   
employees  are  notified  that mandatory  overtime  is  used.                                                                   
There have been not had a grievances filed to date.                                                                             
                                                                                                                                
SUSAN  JOHNSTON,  DIRECTOR  FOR  COMPENSATION  AND  BENEFITS,                                                                   
PROVIDENCE   HOSPITAL,  testified   via  teleconference,   in                                                                   
opposition  to SB  28.  She  stated that  the hospital  would                                                                   
rather  work with  the  management  team to  address  nurse's                                                                   
concerns.  She  informed the Committee that  the hospital has                                                                   
provisions  within  the collective  bargaining  agreement  to                                                                   
minimize overtime.                                                                                                              
                                                                                                                                
Senator  Elton  asked if  the  hospital  had nurses  who  are                                                                   
working more  than 14 hours without  a 10 hour  break between                                                                   
shifts.  Ms.  Johnston explained that the hospital  does have                                                                   
nurses  working overtime.    She explained  that  there is  a                                                                   
provision within  the contract that provides  premium pay for                                                                   
those  with less  than an  eight hour  break between  shifts.                                                                   
There is no mandatory overtime at Providence Hospital.                                                                          
                                                                                                                                
Senator Elton asked for an explanation  of mandatory overtime                                                                   
and  questioned if  it differs  from  mandatory call.     Ms.                                                                   
Johnston  replied  that only  three  units in  their  largest                                                                   
hospital have mandatory call.  Mandatory call requires nurses                                                                   
to be  available "on  call". Nurses are  paid for  that time.                                                                   
Nurses  within that  group  understand  the requirement  when                                                                   
they are hired for the position.                                                                                                
                                                                                                                                
Senator Elton  asked if  mandatory call  can be applied  even                                                                   
after a  nurse has had a  fourteen hour shift.   Ms. Johnston                                                                   
confirmed that there is potential for that circumstance.                                                                        
                                                                                                                                
REBECCA  BOLLING,   ALASKA  NURSES  ASSOCIATION,   KETCHIKAN,                                                                   
testified  via teleconference,  in  support of  SB  28.   She                                                                   
explained   the  challenges  and   difficulties  of   working                                                                   
overtime.   She said if  a nurse is  on call they  can, after                                                                   
working a  12 hour shift, return  five hours later  and still                                                                   
work the regularly  scheduled shift the next day.   She added                                                                   
that mandatory  overtime is frequently used in  the operating                                                                   
room and poses a safety risk to  both patients and staff. She                                                                   
further noted  that the present conditions are  not conducive                                                                   
for recruitment of new staff.                                                                                                   
                                                                                                                                
Senator Olson  asked Ms.  Bolling if there  is equity  in the                                                                   
request  when considering  some  registered  nurses serve  in                                                                   
administrative  positions, rather  than direct patient  care.                                                                   
Ms. Bolling said  that administrative staff is  not called in                                                                   
for  mandatory overtime.    Mandatory overtime  is  generally                                                                   
used for nurses in direct patient care.                                                                                         
                                                                                                                                
10:15:21 AM                                                                                                                   
                                                                                                                                
Senator Thomas  asked if nurses  work beyond a 12  hour shift                                                                   
within a 14 day  period. Ms. Bolling said that  it is routine                                                                   
with approximately 20 nurses working  more than 80 hours in a                                                                   
week.                                                                                                                           
                                                                                                                                
PAMELA REID, REGISTERED NURSE,  testified via teleconference,                                                                   
in opposition  to SB  28.  She  disagreed with the  provision                                                                   
for three  reasons: 10  hours rest  required between  shifts,                                                                   
restricted  work hours  to  14 hours,  and  no provision  for                                                                   
bailor  nurses.   She  explained  that bailor  nurseswork  a                                                                   
reduced number  of hours, during inconvenient  times, and are                                                                   
paid  for  working  a full  shift.    She  said there  is  no                                                                   
mandatory on  call or  overtime at North  Star.   She pointed                                                                   
out that the provision does not  preclude nurses from putting                                                                   
in  extra shifts  at  another facility.    She recommended  a                                                                   
change in Sec. 18.20.400 (c),6:  delete "14 consecutive hours                                                                   
without  a 10 hour  break"   insert "16  hours with  7.5 hour                                                                   
break".  She  concluded by requesting that language  be added                                                                   
to address bailor nurses.                                                                                                       
                                                                                                                                
DEBBIE  THOMPSON,   PRESIDENT,  ALASKA  NURSES   ASSOCIATION,                                                                   
ANCHORAGE,  testified via  teleconference, in  support  of SB
28.  She  outlined her history  in the field.  She  noted the                                                                   
danger  of overworked  nurses and opined  that nurses  coming                                                                   
into the  profession would  not want to  work in  the current                                                                   
environment.                                                                                                                    
                                                                                                                                
10:25:12 AM                                                                                                                   
                                                                                                                                
TOM RENKES,  EXECUTIVE DIRECTOR,  ALASKA NURSES  ASSOCIATION,                                                                   
testified via teleconference,  testified in support of SB 28.                                                                   
He outlined his  extensive work history in the  nursing field                                                                   
and read from statement (copy on file).                                                                                         
                                                                                                                                
     In  the last  5  months I  have personally  visited  and                                                                   
     spoke  with  nurses  in   Fairbanks  Valdez,  Anchorage,                                                                   
     Wrangell,  Ketchikan, Juneau,  and Wasilla,  as well  as                                                                   
     several groups  of nursing  students from UAA  and their                                                                   
     faculty.   One hundred of those nurses  interviewed said                                                                   
     mandatory overtime  is a problem in their  career, while                                                                   
     the  students  indicated   they  would  not  work  at  a                                                                   
     facility  where  overtime  was the  rule  and  mandatory                                                                   
     overtime was a policy.                                                                                                     
                                                                                                                                
     There  is major arbitration  occurring  as we  speak for                                                                   
     one facility's  inability to  offer meals and  breaks to                                                                   
     nurses  during  the course  of  a work  day.   There  is                                                                   
                                              th                                                                                
     another facility that has  on RN on her 7  12 hour shift                                                                   
     in  8 days,  which  is why  she  cannot  be here  today.                                                                   
     Finally, one nurse at a Southeast  facility indicated it                                                                   
     was just expected they take  mandatory call because they                                                                   
     always work short.                                                                                                         
                                                                                                                                
Mr.  Renkes continued  his testimony  with a  quote from  the                                                                   
National Academy of Science, Institute  of Medicine, Authored                                                                   
by  John Howard  MD:  Report  section  6.1 "To  reduce  error                                                                   
producing  fatigue, state regulatory  bodies should  prohibit                                                                   
nursing staff from providing patient  care in any combination                                                                   
of scheduled  shift, mandatory  overtime, volunteer  overtime                                                                   
in excess  of 12  hours in any  given 24  hour period,  in an                                                                   
excess of  60 hours in a seven  day period".  By  2002, eight                                                                   
states prohibited mandatory overtime,  after the reports five                                                                   
other states immediately enacted legislation.                                                                                   
                                                                                                                                
There is similar  legislation nationally that  covers airline                                                                   
pilots,  railroad engineers,  police officers,  firefighters,                                                                   
maritime  personnel,   physicians  and  pilots   in  military                                                                   
combat.  He referenced an editorial  on fatigue from February                                                                   
27,  2008,  Anchorage  Daily News.    The  article  mentioned                                                                   
several cases  of fatigue among nursing staff  and determined                                                                   
that  by   increasing  nursing   staff  to  reduce   fatigue,                                                                   
hospitals could save  money.  He informed the  Committee that                                                                   
there are 9,000 registered nurses  licensed in the state. Six                                                                   
thousand  registered nurses  live  in Alaska:  4,500 work  in                                                                   
acute care.  It has been proven  by the Board of Nursing that                                                                   
newly  licensed nurses  are leaving  Alaska due  to the  work                                                                   
environment.                                                                                                                    
                                                                                                                                
Senator Elton asked  if patients have the right  to request a                                                                   
nurse that has  worked only four hours that day.   Mr. Renkes                                                                   
said a patient does not have that right.                                                                                        
                                                                                                                                
10:30:16 AM                                                                                                                   
                                                                                                                                
NANCY  DAVIS,  VICE  PRESIDENT,  ALASKA  NURSES  ASSOCIATION,                                                                   
testified in  support of  SB 28 and  outlined her  history in                                                                   
the  nursing field.   She  provided some  information on  the                                                                   
Bailor  plan explaining  that  originally the  intent was  to                                                                   
establish two, 12 hour nursing  shifts to cover weekends. The                                                                   
plan has changed considerably  from its original intent.  She                                                                   
maintained that  extending the  shifts creates a  safety risk                                                                   
to patients  as well as to  the nursing staff.   She informed                                                                   
the Committee that in the Gallup  poll nurses have been rated                                                                   
as the  number one  profession for  professional honesty  and                                                                   
ethics.    As an  extension  of  that, patients  expect  that                                                                   
nurses speak for  patient safety. She asked  the Committee to                                                                   
support nurses and patient safety by passing SB 28.                                                                             
                                                                                                                                
ROD BETIT, PRESIDENT, CEO, ALASKA  STATE HOSPITAL AND NURSING                                                                   
HOME ASSOCIATION (ASHNHA), testified  in opposition to SB 28.                                                                   
He presented  a chart,  ASHNHA 2004  and 2005 Nurse  Overtime                                                                   
Survey  Results -  Version 'D',  2/03/06 (copy  on file).  He                                                                   
clarified that 10 of the facilities  represented in the chart                                                                   
have   negotiated   labor  agreements   governing   mandatory                                                                   
overtime.  The other 21 facilities  deal with overtime issues                                                                   
among  staff.     The  survey   reveled  that  there   is  no                                                                   
significant  use  of mandatory  overtime  other  than at  the                                                                   
Alaska  Psychiatric   Institute.    He  explained   that  the                                                                   
psychiatric   facilities  have   unique  circumstances   that                                                                   
require  the  need  for  mandatory   overtime.    He  further                                                                   
clarified  that there  is an  expectation that  nurses be  on                                                                   
call in certain  units.    He pointed out  that the mandatory                                                                   
overtime for  Bartlett Hospital is  a result of  excess hours                                                                   
of nurses  in surgery. He further  explained that there  is a                                                                   
pattern of  temporary nurse hours  purchased to fill  the gap                                                                   
in nursing hours.                                                                                                               
                                                                                                                                
Mr.  Betit reported  that  ASHNA has  been  working with  the                                                                   
University  Of  Alaska  Anchorage   to  improve  the  nursing                                                                   
shortage.   Members of ASHNHA  contribute financially  to the                                                                   
expanded nursing  program, which is now producing  200 nurses                                                                   
a year with 93%  of the nurses continuing to  work in Alaska.                                                                   
ASHNHA has not  seen supportive documentation  that mandatory                                                                   
overtime is a problem and does not support SB 28.                                                                               
                                                                                                                                
Senator Elton referenced earlier  comments regarding Bartlett                                                                   
Regional Hospital mandatory overtime  for operating room (OR)                                                                   
nurses. He  asked if mandatory  overtime for OR nurses  is an                                                                   
issue  for  other facilities.      Mr.  Betit said  at  other                                                                   
facilities OR nurses have worked  out the issue through labor                                                                   
agreements.                                                                                                                     
                                                                                                                                
Senator  Elton referenced  the chart and  asked if  "on-call"                                                                   
represents mandatory overtime.   Mr. Betit confirmed that was                                                                   
correct.                                                                                                                        
                                                                                                                                
Senator Elton  asked who had been  surveyed.  Mr.  Betit said                                                                   
the survey  went to  each CEO  of the  facilities to  give to                                                                   
their personnel department to collect the information.                                                                          
                                                                                                                                
Senator Thomas  asked what hospitals  consider a  safe amount                                                                   
of hours for someone  to work in acute care.   Mr. Betit said                                                                   
the facilities consider that with staff when scheduling.                                                                        
                                                                                                                                
10:38:41 AM                                                                                                                   
                                                                                                                                
Senator Thomas  asked if  the hours are  based on a  five day                                                                   
work week.  Mr. Betit explained  that if you are working a 12                                                                   
hour shift, typically that would be a three day week.                                                                           
                                                                                                                                
Senator  Thomas   asked  why  Providence  Hospital   was  not                                                                   
represented  in the  temporary  nursing hour's  column.   Mr.                                                                   
Betit said they do have temporary  nurses, but their data was                                                                   
not collected in that specific detail.                                                                                          
                                                                                                                                
10:39:50 AM                                                                                                                   
                                                                                                                                
Senator  Olson  asked  how  many  lawsuits  have  been  filed                                                                   
against  any of  the  institutions due  to  mistakes made  by                                                                   
nurses.   Mr. Betit said  he is unaware  of any  lawsuits and                                                                   
referenced the chart.                                                                                                           
                                                                                                                                
Senator Elton asked if the grievances  are filed by nurses or                                                                   
patients.   Mr. Betit  said the  chart represents  grievances                                                                   
filed by nurses.                                                                                                                
                                                                                                                                
In response  to Senator  Elton's question,  Mr. Betit  said a                                                                   
grievance  can be  filed any time  a person  feels they  have                                                                   
been treated inappropriately by an employer.                                                                                    
                                                                                                                                
Senator Elton asked  if patients can request a  nurse that is                                                                   
not on overtime.                                                                                                                
                                                                                                                                
10:41:35 AM                                                                                                                   
                                                                                                                                
Mr. Betit  said he  did not  think that  was possible  at any                                                                   
facility.  He offered to follow up on the question.                                                                             
                                                                                                                                
Senator  Olson  asked if  physicians  have commented  on  the                                                                   
provision.  Senator Davis said  that there  is one  letter of                                                                   
support from Dr. Patrick Nolan in the packets.                                                                                  
                                                                                                                                
SB  28   was  HEARD  and   HELD  in  Committee   for  further                                                                   
consideration.                                                                                                                  
                                                                                                                                
AT EASE:  10:43:44 AM                                                                                                         
RECONVIENE:  10:44:15 AM                                                                                                      

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