Legislature(2013 - 2014)SENATE FINANCE 532

03/29/2013 09:00 AM FINANCE

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09:08:00 AM Start
09:09:42 AM SB49
01:47:32 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
SENATE BILL NO. 49                                                                                                            
     "An  Act defining  'medically  necessary abortion'  for                                                                    
     purposes of  making payments  under the  state Medicaid                                                                    
9:09:42 AM                                                                                                                    
SENATOR JOHN COGHILL, introduced SB  49, and referred to the                                                                    
Sponsor Statement (copy on file).                                                                                               
     Senate Bill 49 specifically  brings clarity to the term                                                                    
     "medically  necessary  abortion"  for the  purposes  of                                                                    
     making  payments under  Medicaid. In  2001, the  Alaska                                                                    
     Supreme  Court  determined  the   state  must  pay  for                                                                    
     medically necessary  abortions for participants  in the                                                                    
     Medicaid  program.  Since  2001,  the  term  "medically                                                                    
     necessary  abortion"  has   acquired  a  constitutional                                                                    
     component of  unknown scope. The relatively  few Alaska                                                                    
     cases   involving  abortion   rights  do   not  provide                                                                    
     guidance  as   to  how  broadly  the   term  "medically                                                                    
     necessary abortion"  is to be construed.  SB 49 answers                                                                    
     that issue. SB 49,  based on recommendations and expert                                                                    
     testimony   from   medical  professionals,   reasonably                                                                    
     provides   a  neutral   definition  for   a  "medically                                                                    
     necessary abortion." I urge you to support SB 49.                                                                          
Senator  Coghill stated  that  the  Judiciary Committee  had                                                                    
some  testifiers who  identified  what  would be  "medically                                                                    
necessary." He stated that the  Supreme Court had determined                                                                    
that  medical  terms   through  conversations  with  medical                                                                    
professionals   on  both   sides   of   the  question.   The                                                                    
conversations  with medical  professionals  resulted in  the                                                                    
Judiciary Committee drafting a  list that would satisfy both                                                                    
the  Supreme  Court  and  what   would  be  "good  medically                                                                    
necessary  criteria." He  shared that  the neutral  criteria                                                                    
was also  examined from  a legal  perspective. He  felt that                                                                    
the  bill  described  what would  be  considered  "medically                                                                    
necessary", but it  still provided the doctors  the trust to                                                                    
make proper  decisions. He stressed that  the bill's purpose                                                                    
was to  define the physical  criteria for the  life, health,                                                                    
and wellbeing of  the mother. He remarked that  the bill did                                                                    
not restrict  abortions; but outlined  the reasons  that the                                                                    
State of  Alaska would  pay for the  abortion. He  felt that                                                                    
the Judiciary Committee conducted  a very thorough review of                                                                    
the  testimony from  all sides  of the  argument. He  stated                                                                    
that  the   Judiciary  Committee  held  six   hearings,  and                                                                    
approximately  60 people  testified on  the bill.  He shared                                                                    
that the last section of  the bill highlighted "serious risk                                                                    
to the  life or physical  health, includes, but  not limited                                                                    
to  the serious  risk to  the  pregnancy of  the woman."  He                                                                    
stated that  the bill  gave the  doctor the  discretion, but                                                                    
outlined to the patient  what would be considered "medically                                                                    
9:15:51 AM                                                                                                                    
Senator Coghill  referred to  the provision,  commonly known                                                                    
as the Hyde Amendment, which  dealt with rape and incest. He                                                                    
stated  that the  State of  Alaska paid  for abortions  that                                                                    
were the  result of rape or  incest. He did not  know of any                                                                    
State  of  Alaska  funded  abortions,   based  on  the  Hyde                                                                    
Amendment criteria. He stated that  for ten years there were                                                                    
no Hyde  Amendment funded  abortions in  the state.  He felt                                                                    
that the bill  outlined an adequate framework  of what would                                                                    
be  considered  "medically  necessary", and  considered  all                                                                    
others   "elective."  He   felt  that   the  framework   was                                                                    
necessary, so  whoever paid for  the abortion  could clearly                                                                    
understand the criteria.                                                                                                        
Co-Chair  Meyer  stressed  that the  focus  of  the  meeting                                                                    
should be directed toward the financial implications.                                                                           
CHAD HUTCHISON, STAFF, SENATOR JOHN  COGHILL, shared a brief                                                                    
executive  summary as  to the  federal  foundation, and  the                                                                    
terms  that  were used  in  the  bill.  He stated  that  the                                                                    
definition   of  "medically   necessary"  incorporated   the                                                                    
statutory  that  was  outlined in  the  Hyde  Amendment.  He                                                                    
looked at  tab 4 of  the "HB  49 Committee Binder"  (copy on                                                                    
file). The Executive Order 13535, Section 1:                                                                                    
     It is  necessary to  establish an  adequate enforcement                                                                    
     mechanism  to ensure  that Federal  funds are  not used                                                                    
     for  abortion  services (except  in  cases  of rape  or                                                                    
     incest,  or  when  the  life  of  the  woman  would  be                                                                    
     endangered),  consistent  with a  longstanding  Federal                                                                    
     statutory  restriction that  is commonly  known as  the                                                                    
     Hyde Amendment.                                                                                                            
Mr. Hutchison  remarked that SB  49 included  provisions for                                                                    
rape,  incest, or  danger  to  the life  of  the mother.  He                                                                    
encouraged the committee to read  tab 7 for more information                                                                    
regarding the Hyde Amendment.                                                                                                   
9:20:45 AM                                                                                                                    
Mr. Hutchison  shared that  the Alaska  Constitution allowed                                                                    
for one extra  layer of protection. He stated  that the bill                                                                    
included provisions  related to  the physical health  of the                                                                    
mother,  which  was  more  thorough   that  merely  a  life-                                                                    
threatening circumstance. He stressed  that Medicaid did not                                                                    
fund elective procedures; therefore  Medicaid shall not fund                                                                    
elective   abortions.  He   stated   that  Medicaid   funded                                                                    
medically  necessary  procedures; therefore  Medicaid  would                                                                    
not fund medically necessary abortions.  He pointed out that                                                                    
the  definition  was  so  unclear,  that  he  believed  that                                                                    
elective  and   medically  necessary  procedures   had  been                                                                    
included in the previous definition.  He stressed that SB 49                                                                    
outlined a proper  definition of what would  be considered a                                                                    
medically  necessary abortion.  He looked  at tab  4a, which                                                                    
provided  some statistical  context comparing  other state's                                                                    
provisions  to Alaska's  current  model. He  pointed to  the                                                                    
left  column  of  page  2,  which  was  a  report  from  the                                                                    
Guttmacher  Institute  that  listed   32  states,  plus  the                                                                    
District  of Columbia  that  strictly  followed the  federal                                                                    
foundational  platform  of   life  endangerment,  rape,  and                                                                    
incest. He  pointed out  that seventeen  states had  a court                                                                    
order or voluntary  provisions to allow state  funds for all                                                                    
or  most medically  necessary abortions.  He explained  that                                                                    
Alaska had been court ordered  to fund those procedures. The                                                                    
court  order  was  based  on  the  2001  Planned  Parenthood                                                                    
decision. He looked at tab 4c, page 16:                                                                                         
     The  State, having  undertaken to  provide health  care                                                                    
     for poor  Alaskans, must adhere to  neutral criteria in                                                                    
     distributing  that  care.  It may  not  deny  medically                                                                    
     necessary  services to  eligible  individuals based  on                                                                    
     criteria  unrelated  to  the  purposes  of  the  public                                                                    
     health care program.                                                                                                       
Mr. Hutchison looked  at tab 8, and pointed out  that of the                                                                    
1,627 induced terminations  in 2011, 623 were  paid for with                                                                    
Medicaid funds.  He shared that  the percentage  of Medicaid                                                                    
covered abortions in 2011 was 38.3 percent.                                                                                     
Mr. Hutchison  looked at  tab 9, page  marked 114,  table 3,                                                                    
"Percentage  distribution of  women having  an abortion,  by                                                                    
their  most important  reason for  having an  abortion, 2004                                                                    
and 1987." He pointed out that  less than 1 percent of women                                                                    
who terminated  a pregnancy in  2004 claimed to be  a victim                                                                    
of  rape; and  only 4  percent  claimed to  have a  physical                                                                    
problem  with their  health. He  stressed that  there was  a                                                                    
remarkable   gap  between   the   percentage  of   abortions                                                                    
performed based  on maintaining the  physical health  of the                                                                    
mother  versus the  percentage of  abortions in  Alaska that                                                                    
were  covered by  Medicaid.  He felt  that  there were  many                                                                    
elective  procedures  were  covered by  Medicaid  under  the                                                                    
current  definition  of  medically necessary.  He  explained                                                                    
that   SB  49   narrowed   the   definition  of   "medically                                                                    
necessary",  which was  based on  neutral criteria  directly                                                                    
related to  the health care  field. He was confident  in the                                                                    
language of the bill, because  it had been thoroughly vetted                                                                    
by both medical and legal experts.                                                                                              
9:27:25 AM                                                                                                                    
Senator Dunleavy  looked at  tab 4a,  and wondered  if South                                                                    
Dakota  was violating  the  federal  mandate. Mr.  Hutchison                                                                    
replied  that   South  Dakota  was  violating   the  federal                                                                    
mandate,  but  bill  was not  intended  to  violate  federal                                                                    
Senator Dunleavy wondered why Alaska  could not use the same                                                                    
model as South  Dakota. Mr. Hutchison replied  that the 2001                                                                    
court  decision  controlled  the   legal  framework  of  the                                                                    
language of the bill.                                                                                                           
Senator Dunleavy  surmised that  the language was  not based                                                                    
on legislation;  rather it was  based on a court  order. Mr.                                                                    
Hutchison agreed with that summation.                                                                                           
Senator Hoffman wondered how a  second opinion from a doctor                                                                    
would  be  treated in  the  language  of the  bill.  Senator                                                                    
Coghill replied that he expected  that the question would be                                                                    
dealt with between the patient  and the doctor. He furthered                                                                    
that  he  was  not  sure   how  Medicaid  would  treat  that                                                                    
question, and  felt that  Commissioner Streur  would provide                                                                    
further information.                                                                                                            
Senator  Hoffman  surmised  that  a second  opinion  from  a                                                                    
doctor based on  the life and health of the  mother would be                                                                    
welcome  in  determining  if   an  abortion  was  considered                                                                    
"medically necessary."                                                                                                          
Co-Chair  Meyer wondered  how many  abortions were  elective                                                                    
versus  what  would  be  considered  "medically  necessary."                                                                    
Senator Coghill  shared that there  were 1,629  abortions in                                                                    
2011; and  38 percent  were paid  with Medicaid  dollars. He                                                                    
stated  that he  extrapolated that  less than  6 percent  of                                                                    
those  Medicaid   covered  abortions  would   be  considered                                                                    
"medically necessary."  He stressed  that the  summation may                                                                    
not be accurate,  because there could be a  larger issue. He                                                                    
furthered   that   the   Guttmacher   Institute's   research                                                                    
reflected that 50  percent of abortions were  because of job                                                                    
related or  convenience issues,  which should  be considered                                                                    
"elective abortions."                                                                                                           
Mr. Hutchison looked  at tab 8, which  discussed the figures                                                                    
that  the statistical  analysis was  based on.  He clarified                                                                    
that the  total number of  abortions was 1,627 in  2011; and                                                                    
the  number of  abortions  covered by  Medicaid  was 623  in                                                                    
2011, which was 38.3 percent of all abortions in 2011.                                                                          
9:32:37 AM                                                                                                                    
Co-Chair  Meyer  surmised  that Medicaid  money  was  mostly                                                                    
federal money.  Senator Coghill responded that  the Medicaid                                                                    
money  was approximately  50 percent  federal  money and  50                                                                    
percent state money, but varied year to year.                                                                                   
Co-Chair  Kelly wondered  if 0.5  percent of  abortions were                                                                    
medically  necessary  or  the result  of  rape  and  incest.                                                                    
Senator  Coghill  replied that  tab  9,  page 114  reflected                                                                    
those figures.  He announced that  0.5 percent  of abortions                                                                    
were the  result of  rape, and 4  percent of  abortions were                                                                    
because of physical problems with the woman's health.                                                                           
Co-Chair  Kelly  anticipated that  4.5  percent  would be  a                                                                    
reasonable number to use as  a determination of a reasonable                                                                    
number  of   people  that   would  be   obtaining  medically                                                                    
necessary abortions to be paid for with Medicaid dollars.                                                                       
Senator  Dunleavy wondered  if  federal funds  would be  the                                                                    
only Medicaid dollars  that would be used  for abortions, if                                                                    
the legislation  passed. Senator Coghill responded  that the                                                                    
Medicaid dollar was a federal and state partnership.                                                                            
Vice-Chair Fairclough wondered how  a doctor would determine                                                                    
how  the  abortion  would be  medically  necessary.  Senator                                                                    
Coghill responded  that there was  a list  of qualifications                                                                    
that  doctors   would  use  to   determine  what   would  be                                                                    
considered "medically necessary."                                                                                               
9:37:39 AM                                                                                                                    
Vice-Chair  Fairclough looked  at  tab 4b,  and wondered  if                                                                    
Alaska  provided counseling  to those  that were  victims of                                                                    
rape  and incest,  and  wondered if  that  assault would  be                                                                    
reported  to  the Department  of  Public  Safety (DPS).  She                                                                    
pointed out  that advocacy groups felt  that sexual assaults                                                                    
were underreported to DPS. Senator  Coghill replied that the                                                                    
doctors would report  the assaults in cases  where they were                                                                    
required  to  report. He  furthered  that  he was  not  sure                                                                    
exactly  how  the  sexual assaults  would  be  reported.  He                                                                    
understood  the issue  regarding who  decides payment  under                                                                    
rate, and he  also understood who and how  the assault would                                                                    
be reported.                                                                                                                    
Vice-Chair Fairclough  pointed out that victims  of rape and                                                                    
incest sometimes  did not  choose to  report the  crime. She                                                                    
stressed  that  many  of  those   victims  that  may  become                                                                    
pregnant were  faced with a  decision that would  affect the                                                                    
rest  of  their  lives.  She remarked  that  many  of  those                                                                    
victims were  not willing to undergo  counseling, because of                                                                    
the issue  of disclosure. She  wondered if the  rape victims                                                                    
were protected  under the  Health Insurance  Portability and                                                                    
Accountability  Act  (HIPAA),  because   if  the  crime  was                                                                    
reported, the state was obligated  to prosecute the offense.                                                                    
She  stressed that  the victim  may be  faced with  a public                                                                    
documentation  of  what  they  may  have  wanted  to  remain                                                                    
private. Senator Coghill replied  that "abortion in cases of                                                                    
rape and  incest" and  "medically necessary  abortions" were                                                                    
two  different issues.  He remarked  that the  court mandate                                                                    
for rape and incest was already in place.                                                                                       
9:42:27 AM                                                                                                                    
Vice-Chair  Fairclough supported  the provision  of abortion                                                                    
in cases  of rape and  incest. She  felt that the  issue may                                                                    
need to be  addressed in the bill. She looked  at tab 8, and                                                                    
noted  the  ages of  the  people  who were  seeking  medical                                                                    
Vice-Chair  Fairclough  looked  at  tab  8,  and  felt  that                                                                    
abortions  under age  24 were  a substantial  number in  the                                                                    
state. She felt that those  numbers might increase, and rape                                                                    
statistics  may also  increase, because  the pregnant  women                                                                    
may  say they  were raped  in order  to obtain  an abortion.                                                                    
Senator  Coghill  responded  that   there  was  an  informed                                                                    
consent  portion of  the  bill,  so Vice-Chair  Fairclough's                                                                    
concerns  may be  directly related  to the  informed consent                                                                    
portion  of the  bill. He  stressed that  the doctors  would                                                                    
have that  conversation with the individual  who was seeking                                                                    
an  abortion.  He  remarked  that  the  payment  method  and                                                                    
information  that   was  delivered   in  order   to  receive                                                                    
assistance were  two different matters. He  pointed out that                                                                    
that issue had undergone significant litigation.                                                                                
Vice-Chair   Fairclough  would   like  to   hear  from   the                                                                    
Department of  Law (DOL) about the  consequence of reporting                                                                    
that the abortion  was obtained because of a  rape or incest                                                                    
Mr.  Hutchison  remarked  that the  inclusion  of  rape  and                                                                    
incest had  been a part  of Alaska  law ever since  the Hyde                                                                    
Amendment  was enacted.  He felt  that the  rape and  incest                                                                    
numbers had  not changed  from less  than 0.5  percent since                                                                    
Senator  Coghill  furthered  that  there may  be  a  greater                                                                    
problem  with  rape  and  incest in  Alaska  than  what  was                                                                    
reflected   in   the    data.   He   understood   Vice-Chair                                                                    
Fairclough's concerns, and agreed to  work on that issue. He                                                                    
felt that the current bill's  agenda may not be appropriate,                                                                    
but  understood the  severity  of the  problem  of rape  and                                                                    
incest reporting in Alaska.                                                                                                     
Vice-Chair Fairclough  felt that the individuals  who report                                                                    
to be victims  of rape should be treated  with respect; that                                                                    
their lives  should remain private;  and the state  does not                                                                    
subject  those individuals  to scrutiny  that they  may have                                                                    
chosen  not to  participate  in.  Senator Coghill  responded                                                                    
that  her concern  was  a  legal issue  that  may have  many                                                                    
9:47:52 AM                                                                                                                    
Co-Chair  Kelly felt  that Vice-Chair  Fairclough's concerns                                                                    
were beyond the scope of  the bill. Senator Coghill stressed                                                                    
that the  bill was  focused on when  it was  appropriate for                                                                    
Medicaid to cover the cost of an abortion.                                                                                      
Co-Chair Meyer wondered if the  pregnant women had access to                                                                    
counseling   that  provided   information  about   adoption.                                                                    
Senator Coghill responded that pregnant  women had access to                                                                    
that kind  of counseling, but  he felt that there  needed to                                                                    
be counseling  that provided information about  adoption. He                                                                    
furthered that  there was an  informed consent  provision in                                                                    
Alaska  law  that  endeavored  to  provide  women  with  the                                                                    
counseling options  about effects  of abortion  and adoption                                                                    
options. He explained  that 76 percent of  women who undergo                                                                    
and induced pregnancy  termination do not request  a copy of                                                                    
the informed  consent. He  furthered that  he had  pushed to                                                                    
require  all  women  who   underwent  an  induced  pregnancy                                                                    
termination  to  receive  informed consent,  but  the  court                                                                    
ruled  that women  could only  receive  that information  if                                                                    
they request it. He felt that was a problem.                                                                                    
9:52:00 AM                                                                                                                    
WILLIAM  STREUR,  COMMISSIONER,  DEPARTMENT  OF  HEALTH  AND                                                                    
SOCIAL SERVICES (DHSS), introduced himself.                                                                                     
Co-Chair   Meyer   requested   information   regarding   the                                                                    
indeterminate  fiscal  note.  He  specifically  queried  the                                                                    
federal  and  state  percentage share.  Commissioner  Streur                                                                    
responded  that   he  did  not   know  the   exact  Medicaid                                                                    
contribution percentage split between  the state and federal                                                                    
Senator  Dunleavy  wondered  if   it  was  possible  to  use                                                                    
separate  the state  and federal  fund accounting,  based on                                                                    
what  the  Medicaid  money  was  used  toward.  Commissioner                                                                    
Streur  replied that  it was  not possible  to separate  the                                                                    
state and federal fund accounting.                                                                                              
Senator  Dunleavy  wondered  if  it were  possible  to  only                                                                    
dedicate  federal  money  to  abortion,  within  a  separate                                                                    
accounting   process   within  Alaska's   Medicaid   system.                                                                    
Commissioner  Streur replied  in the  negative, because  the                                                                    
federal government would only  pay their portion of Medicaid                                                                    
for the cost of Hyde covered medically necessary abortions.                                                                     
9:56:38 AM                                                                                                                    
Vice-Chair  Fairclough felt  that the  discussion was  not a                                                                    
pro-life versus pro-choice discussion.  She requested a copy                                                                    
of the certification  form that the doctors use  in order to                                                                    
determine  whether   or  not  the  abortion   is  considered                                                                    
medically necessary. Commissioner  Streur responded that the                                                                    
form submitted to DHSS was  a certification from the doctor.                                                                    
The certification  included abortion due to  rape or incest;                                                                    
health of  the mother;  or state  general fund  only stating                                                                    
that the abortion  was not an elective  procedure, but based                                                                    
on  the doctor's  professional opinion  determined that  the                                                                    
health of the mother was in  danger due to the impact of the                                                                    
pregnancy.  This certification  was  the only  way a  doctor                                                                    
could  be reimbursed.  He stressed  that  the mother's  non-                                                                    
notarized statement was not submitted to DHSS.                                                                                  
Vice-Chair  Fairclough wondered  if the  patient's name  was                                                                    
confidential.   Commissioner   Streur   replied   that   the                                                                    
patient's name  and identification  number were  included in                                                                    
the form.                                                                                                                       
Co-Chair  Meyer noted  that the  state's share  for abortion                                                                    
procedures  totaled  $191,000. He  queried  the  cost of  an                                                                    
individual  abortion procedure.  Commissioner Streur  agreed                                                                    
to provide that information.                                                                                                    
Senator Olson shared that he  had done that $191,000 divided                                                                    
by 623 paid, was $307 per abortion procedure.                                                                                   
Senator  Dunleavy  wondered  if the  Medicaid  determination                                                                    
process  was different  as a  result of  the Hyde  amendment                                                                    
court action. Commissioner Streur  responded that he did not                                                                    
understand the question.                                                                                                        
Senator  Dunleavy wondered  how  the  recent court  decision                                                                    
changed the structure of how  abortions would be paid for by                                                                    
Medicaid.  Commissioner Streur  responded  that the  supreme                                                                    
court decision resulted in an  expansion of the coverage for                                                                    
abortions in the state of Alaska.                                                                                               
10:01:39 AM                                                                                                                   
AT EASE                                                                                                                         
10:03:19 AM                                                                                                                   
10:04:16 AM                                                                                                                   
DOCTOR JOHN  THORP, PHYSICIAN, UNIVERSITY OF  NORTH CAROLINA                                                                    
(via teleconference), shared that  he helped Senator Coghill                                                                    
helped   define  "medically   necessary  abortion"   in  the                                                                    
drafting of the bill. He felt  that the list was adequate in                                                                    
determining what was "medically necessary."                                                                                     
DOCTOR    JEAN    BRAMER,    PHYSICIAN,    FAIRBANKS    (via                                                                    
teleconference), felt  that the bill was  of fiscal concern.                                                                    
She  shared that  patients  were allowed  to  seek a  second                                                                    
opinion, even when covered by Medicaid.                                                                                         
Vice-Chair Fairclough wondered if she  had ever filled out a                                                                    
certification form that specifically  listed rape or incest.                                                                    
Doctor Bramer responded that she  did not perform abortions.                                                                    
She furthered that she had  participated in an abortion as a                                                                    
resident. It  was an  extreme case where  the patient  had a                                                                    
severe heart  condition, so she  had a 50 percent  or higher                                                                    
chance of dying during the pregnancy.                                                                                           
Co-Chair Meyer  wondered if a  second opinion would  be paid                                                                    
for  by Medicaid.  Doctor Bramer  responded that  the second                                                                    
opinion would be covered by Medicaid.                                                                                           
Co-Chair  Meyer felt  that there  were  some questions  that                                                                    
should be addressed by the DOL.                                                                                                 
10:11:36 AM                                                                                                                   
1:38:53 PM                                                                                                                    
STACY KRALY, ASSISTANT ATTORNEY  GENERAL, DEPARTMENT OF LAW,                                                                    
introduced   herself.  She   shared  a   response  regarding                                                                    
information obtained  by a doctor regarding  rape or incest.                                                                    
She  stated  that  there   were  two  different  components:                                                                    
requirements   pertaining   to   adults   and   requirements                                                                    
pertaining  to   minors.  She  stated  that   there  was  no                                                                    
reporting  requirement for  an adult.  That information  was                                                                    
confidential. She  furthered that physicians  were mandatory                                                                    
reporters when it  was determined that a  miner was pregnant                                                                    
by an  adult who  was trusted  to care  for that  minor. She                                                                    
stated   that  there   would  be   no  mandatory   reporting                                                                    
requirement, if  the perpetrator  was not entrusted  to care                                                                    
for the minor.                                                                                                                  
Co-Chair Meyer discussed housekeeping.                                                                                          
SB  49  was   HEARD  and  HELD  in   committee  for  further                                                                    

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