WSR 02-16-101

PROPOSED RULES

DEPARTMENT OF HEALTH


(Dental Hygiene and Dental Programs)

[ Filed August 7, 2002, 11:57 a.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 01-12-094.

     Title of Rule: Access to dental care: WAC 246-814-010 Purpose, 246-814-020 Practices authorized, 246-814-030 Application process and documentation of training required to qualify for endorsement, 246-814-040 Training and the provision of services, and 246-814-990 Endorsement fees for dental assistants and dental hygienists, no renewal of endorsement.

     Purpose: To implement RCW 18.29.220 and 18.32.226, which establishes endorsements to enhance the authority for dental hygienists and dental assistants to provide sealant and fluoride varnish treatment to low-income, rural and other at risk children through schools in coordination with the local public health jurisdictions and local oral health coalitions.

     Other Identifying Information: The rules further clarify the statutes, establishes a fee and procedures for obtaining an endorsement by a dental hygienist or dental assistant.

     Statutory Authority for Adoption: RCW 43.70.650.

     Statute Being Implemented: RCW 18.29.220 and 18.32.226.

     Summary: These rules clarify RCW 18.29.220 and 18.32.226, which are intended to improve access to dental care for low-income, rural and other at risk children by enhancing the authority of dental hygienists and dental assistants to provide dental sealant and/or fluoride varnish treatment for children in school-based programs. The Department of Health encourages partnerships within geographical regions and among participants in the oral health care community in implementing this legislation.

     Reasons Supporting Proposal: Provides a better understanding of the law, establishes procedures, requirements, a fee and consistencies for multiple participants.

     Name of Agency Personnel Responsible for Drafting: Carol L. Lewis, Olympia, Washington, (360) 236-4857; Implementation and Enforcement: Vicki Brown and Lisa Anderson, Olympia, Washington, (360) 236-4857.

     Name of Proponent: Department of Health, governmental.

     Rule is not necessitated by federal law, federal or state court decision.

     Explanation of Rule, its Purpose, and Anticipated Effects: The purpose of these rules is to implement RCW 18.29.220 and 18.32.226, which is intended to provide more access to dental care for low-income, rural and other at risk children. The rules provide a better understanding of the law and provide procedures/requirements for dental hygienists and dental assistants to obtain an endorsement, which will authorize them to provide sealant and/or fluoride varnish treatment to children in the specified populations that are not currently receiving the needed care to be carried out through schools and in coordination with the local public health jurisdictions and local oral health coalitions.

     Proposal does not change existing rules.

     A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

     These new rules have been reviewed and the Department of Health (DOH) has determined that the rule has a disproportionate impact on small business and cost minimization has been provided. Most rule content is dictated by law, however, following the Washington State Department of Health sealant and fluoride varnish program guidelines and record keeping are not directed by statute and impose costs.

     The rules will clarify the qualifications of the practitioners for authorization to provide the sealants and fluoride varnishes to low-income rural and at risk children through schools. Further clarification is provided on the required coordination and protocols for the practitioners, local public health jurisdictions and local oral health coalitions in the provision of the specified services.

     The affected businesses are classified under Standard Industrial Classification Code 8099 Health and allied services, not elsewhere classified. If the individuals providing the sealants and fluoride varnishes incorporate this is the code into which they will most likely be placed.1

     The following rule content is dictated by statute or referenced by state law and is exempt under:

RCW 19.85.025(2) which refers to the list in RCW 34.05.310 (4)(c), rules adopting or incorporating by reference without material change to federal statutes or regulations, Washington state statutes, rules of other Washington state agencies, shoreline master programs other than those programs governing shorelines of statewide significance, or, as referenced by Washington state law, national consensus codes that generally establish industry standards, if the material adopted or incorporated regulates the same subject matter and conduct as the adopting or incorporating rule;
RCW 34.05.310 (4)(e), rules the content of which is explicitly and specifically dictated by statute:
     Dental Hygienists: The law allows dental hygienists to apply sealant and fluoride varnishes without dental supervision. This part of the program may compete with existing dental offices and cause them to lose sales and revenue. The shift is dictated by RCW 18.29.220. However, this shift of activity will only take place through schools for low-income, rural and other at risk children in coordination with the LHJs and local oral health coalitions.

     Local Public Health: The rules clarify the statutory requirement of the practitioners to coordinate with the local public health jurisdictions, however, the law does not require the local public health jurisdictions to create a program and coordinate with the practitioners.

     Fees: The rule content adjusts fees based on the law and is exempt under RCW 19.85.025(2) and 34.05.310 (4)(f), rules that set or adjust fees or rates pursuant to legislative standards. To determine the appropriate fees to charge for the endorsements as provided by chapter 43.70 RCW the processing of reviewing, approving and issuing an endorsement was used to calculate the costs. This includes FTE time, printing, postage and supplies and the estimated transactions resulting in the fee required to cover those costs to provide the endorsements.

     The following rule content imposes costs:

     Dental Assistants: RCW 18.32.226 requires dental assistants employed by a Washington licensed dentist for 200 hours after April 19, 2001, to apply to DOH for an endorsement to apply sealants and fluoride varnishes under the "general supervision" of a dentist in coordination with the local public health jurisdictions and local oral health coalitions carried out through schools for low-income, rural and other at risk children. To apply for an endorsement, the law requires completion of the Washington state school sealant endorsement program, which is the "guidelines" described in WAC 246-814-040.

     Dental Hygienists: RCW 18.29.220 requires dental hygienists licensed after April 19, 2001, to apply to DOH for an endorsement to assess for and apply sealants and/or fluoride varnishes in coordination with the local public health jurisdictions and local oral health coalitions carried out through schools for low-income, rural and other at risk children. To apply for the endorsement, the law requires completion of the Washington state school sealant endorsement program, which is the "guidelines" described in WAC 246-814-040. DOH has already provided endorsements to dental hygienists licensed prior to or on April 19, 2001.

     The Guidelines: RCW 18.29.220 and 18.32.226 requires completion of the "school sealant endorsement program." DOH believes that this refers to existing training given on DOH sealant program guidelines that have been in existence since 1999. These guidelines are currently being revised to include fluoride varnish and the 2002 version is adopted by this rule reference. Without the fluoride varnish guidelines there would not be any parameters to enable the practitioners to design the appropriate program and treatment services. The "guidelines" are designed to provide the procedures required for the LHJs and practitioners to carry out the oral health services as provided under these statutes. There are multiple sources provided to acquire the training, which is intended to provide as much flexibility and the least burden on the practitioners. They are the following:

     1) Graduation from a dental assisting or dental hygiene educational program, accredited by the American Dental Association, which has incorporated the "guidelines."

     2) Continuing education courses which teach the "guidelines" standards.

     3) Independent-study provided through an American Dental Association accredited program, which has incorporated the "guidelines" standards.

     4) Dental assistants and dental hygienists may obtain individualized training of the "guidelines" from a Washington licensed dentist.

     The guidelines impose costs in two forms: Training and practices. These are quantified in Tables 1 and 2 for hygienists and assistants respectively. DOH has tried to estimate the costs at the high end of the spectrum in order to be conservative in assessing the disproportionate impact.

     DOH believes that the hygienists and assistants may incorporate within the SIC 8099 "Health and allied services, nec" and that these incorporated businesses may cover the costs of compliance with this rule. The expected cost on a per child basis of complying with the items in the guidelines is $46.80 and $42.81 for hygienists and assistants respectively. The companies will then receive payment from Medicaid of $88.88 per child.

     In addition DOH expects there will be a cost of $50 for records for the application for the endorsement program.

     DOH believes that all these businesses will be very small and will have at most one employee, for example one dentist with one dental assistant. However, the law requires that the ratios to estimate disproportionality be based on four digit data. Therefore a worst-case scenario was used to estimate costs. The costs for a two-person firm of a dentist and a dental assistant was compared with the costs for a single person firm of a dental hygienist. Based on this assumption the rule does have a disproportionate impact (see Table 3). Cost minimization is required.

     Cost Minimizing Features: DOH has considered many alternative versions of the rule. The law constrains DOH in how the rule was written. We have considered the following cost minimizing items required in RCW 19.85.030:

     (a) Reducing, modifying, or eliminating substantive regulatory requirements;

DOH has already issued endorsements to all 3,961 licensed dental hygienists that were "grand-parented in" and who could choose to apply for an endorsement. This eliminated the requirement for the hygienists to apply for an endorsement if they wanted one.
Renewals of the endorsement for the dental hygienists and the dental assistants are not being required. This provides a one-time endorsement requirement.
The use of the Washington State Department of Health sealant and fluoride varnish program guidelines are voluntary for the local public health jurisdictions.
     (b) Simplifying, reducing, or eliminating record-keeping and reporting requirements;

The application process for dental hygienists and the review/approval process were eliminated for the "grand-parented" dental hygienists by issuing all in this category an endorsement.
By not requiring an endorsement renewal, the reporting and paperwork for renewal of the hygienists and assistants were eliminated.
For those who are not "grand-parented in" the record keeping required for applying for an endorsement was simplified and reduced to one or two documents.
     (c) Reducing the frequency of inspections;

No inspections are required.
     (d) Delaying compliance timetables;

No compliance timetables are required.
     (e) Reducing or modifying fine schedules for noncompliance; or

There are no fine schedules for noncompliance. However, disciplinary action could be taken against the hygienist and the dentist supervising the assistant for not complying with the requirements imposed upon them for unprofessional conduct under the Uniform Disciplinary Act, chapter 18.130 RCW.
     (f) Any other mitigation techniques.

DOH has tried to make it easy to obtain an endorsement so that the new businesses could start up.
     How did DOH involve small business in the rule making? Mailings were sent out to 5,000 dentists, 4,500 dental hygienists, thirty-four local public health jurisdictions, the Office of the Superintendent of Public Instruction, the Washington State Dental Association, the Washington State Dental Hygienists' Association, the dental hygiene and dental assisting educators and to DOH dental and dental hygiene programs interested parties.

     Two open forums were held, one in Yakima and one in Seattle Washington. By invitation, approximately five other groups of interested parties were provided presentations and an opportunity for comment. Comments, concerns and suggestions were submitted in writing by mail, verbally and by e-mail.



Chapter 246-814 WAC

Analysis Review



Rule part

Information Provided by Rule

--

No analyzable impact

Exempted from

SBEIS - dictated by

RCW 18.29.220 and

18.32.226

Cost Benefit Analysis and SBEIS Required

WAC 246-814-010 WAC 246-814-010 Purpose.

The intent of the legislation.

WAC 246-814-020 WAC 246-814-020

Practices authorized.


The different practice parameters for hygienists and assistants for this chapter only.

WAC 246-814-030 WAC 246-814-030 (1) and (5) Application process and documentation of training required to qualify for endorsement.


(1) Endorsements issued to 3,961 hygienists "grand-parented" on or before April 19, 2001.


(5) Washington state DOH sealant/fluoride varnish program guidelines and geographical protocols that should be used for hygienists, assistants, dentists and local public health jurisdictions personnel.

WAC 246-814-030 (2)(a)(b)(c), (3), (4)(a)(b) and (6) Application process and documentation of training required to qualify for endorsement.


(2)(a)(b)(c) Hygienist endorsement criteria.


(3) Dental assistants "grand-parented" on or before April 19, 2001.


(4)(a)(b) Assistant endorsement criteria.


(6) Requirement of hygienists, assistants and dentists to participate in oral health coalition meetings as part of coordination requirement.

WAC 246-814-030 (2)(d), (4)(c) and (d) Application process and documentation of training required to qualify for endorsement.


(2)(d) Hygienists required to complete Washington state DOH sealant/fluoride varnish program guidelines training.


(4)(c) Assistants required to have sealant/fluoride varnish theoretical and clinical training within 200 hours of employment under a dentist.


(4)(d) Assistants required to complete Washington state DOH sealant/fluoride varnish program guidelines training.

WAC 246-814-040 WAC 246-814-040 (1) and (2) Training and the provision of services.


(1) The Washington state DOH sealant/fluoride varnish program guidelines are published, provided and maintained by the DOH.


(2) The usage by hygienists, assistants, LHJs and the content of the Washington state DOH sealant/fluoride varnish program guidelines.

WAC 246-814-040(3) Training and the provision of services.


(3) The training of the Washington state DOH sealant/fluoride varnish program guidelines for hygienists, assistants and dentists and the approved sources for acquiring the training.

WAC 246-814-990 WAC 246-814-990 Endorsement fees for dental assistants and dental hygienists, renewal of endorsement not required.


Establishes a fee for hygienist and assistant endorsements and no renewal requirement for both.


Table 1: Costs for Dental Hygenists
LHJ VOLUNTARY - no costs are imposed by the rule
18 site
30 per hour
5 hours per site
$ 2,700.00 Site Costs
hours
14 data and planning 8 tabulate
6 plan
$ 420.00 oversite costs
$ 3,120.00 LHJ cost
14000 kids
Assumptions
$ 0.22 LHJ cost per child Hours per site Hour to prep/clean up
778 kids per site 389 49 1.5 73
Hygienist Required by the rule through the guidelines
Hours
5 Coordination with LHJ
1 Develop a plan
5 Coordination with school
73 Set up/cleanup the site Assumes mobile unit
389 Deliver the services
65 Collect data on the child and what was done for the child
8 Generate summary data
194 Recheck in one year
65 Assess their outcomes Hour per year Sites per year
805 Hours per site 1790 2.223935026
1 Hours per child
$ 32.22 hourly wage for hygenist
$ 66.37 Training cost per site
$ 25,999.6 Hygenists cost per site
40% Capital overhead factor
$ 36,399 Total cost per site
$ 46.80 Cost per child
School
65 Send home permission slips
5 Plan times and places
70 Total hours
$ 24.22 Cost per hour for school nurse http://www.bls.gov/oes/2000/oes_wa.htm#b31-0000
$ 1,690.91 Cost for school 29-1111
Endorsement records
$ 50.00 Cost of endorsement record keeping
Totals
$ 38,140.34 Total cost for site and delivery at the site
$ 49.04 Total cost per kid
$ 88.88 Medicaid payment per child

Table 2: Costs for Dental Assistants
LHJ Voluntary and does not count
18 site
30 per hour
5 hours per site
$ 2,700.00 Site costs
14 data and planning hours
8 tabulate
6 plan
$ 420.00 oversite costs
$ 3,120.00 LHJ cost
14000 kids
Assumptions
$ 0.22 LHJ cost per child Hours per Days Hour to clean up Total
778 kids per site 389 49 1.5 73
Dentist's costs Required through the law and intiated by the rule
Dentist oversite
194 Dentist time checking children
$ 59.88 $ per hour http://www.bls.gov/oes/2000/oes_wa.htm#b31-0000
40% overhead 29-1020
$ 16,301
Assistant Hours Required by the rule through the guidelines
5 Coordination with LHJ
1 Develop a plan
5 Coordination with school
73 Set up the site Assumes mobile unit
389 Deliver the services
65 Collect data on the child and what was done for the child
8 Generate summary data
194 Recheck in one year
65 Assess their outcomes Hour per year Sites per year
805 Hours per site 1790 2.223935026
1 Hours per child
$ 15.00 hourly wage for hygenist
$ 66.37 Training cost per site
$ 12,139.6 Hygenists cost per site
40% Capital overhead factor
$ 16,301 Dentist oversite per site
$ 33,296 Total cost per site
$ 42.81 Cost per child
School
65 Send home permission slips
5 Plan times and places
70 Total hours
$ 24.22 Cost per hour for school nurse http://www.bls.gov/oes/2000/oes_wa.htm#b31-0000
$ 1,690.91 Cost for school 29-1111
Endorsement records
$ 50.00 Cost of endorsement record keeping
Totals
$ 35,036.97 Total cost for site and delivery at the site
$ 45.05 Total cost per kid
$ 88.88 Medicaid payment per child

Table 3:

SBEIS Ratios
First determine average employment for small and large businesses
How many firms are in the SIC? 93
This many firms make up the top 10% 9.3
Check the list and see how close you can get to the right number of firms.

Note, if there is a mark it means less than 3

How many firms did you select for the top 10%? 4
How many employees are in the top 10%? 257
This is the average number of employees for the top 10% firms 64.25
For the small businesses choose all the firms with 50 or fewer employees that were not in the top 10% category
How many firms did you select for the small businesses? 86
How many employees work for the small businesses? 601
This is the average number of employees working for small businesses 6.99
Next Determine the costs for small and large businesses
** based on covering 2.2 sites per year.
How much will average costs increase for the top 10% of businesses? $77,919.94
How much will average costs increase for the small businesses? $84,821.63
The cost is disproportionately high for small business TRUE
** 2 person dentist and assistant compared with 1 person hygenist
Ratio for the top 10% of businesses $38,959.97
Ratio for the small businesses $84,821.63

1 DOH has considered whether they would be placed in dental offices, however most of the services provided by a dental office could not be provided by such mobile units with such limited service range.

     A copy of the statement may be obtained by writing to Carol Lewis, Health Administrator, Department of Health, P.O. Box 47867, Olympia, WA 98504-7867, phone (360) 236-4857, fax (360) 664-9077.

     RCW 34.05.328 applies to this rule adoption. According to RCW 34.05.328 (5)(c)(iii)(B), these rules are legislatively significant because they include qualifications for an endorsement.

     Hearing Location: Department of Health, 1101 Eastside, Room 6, Olympia, WA 98504, on September 13, 2002, at 10:00 a.m. - 12:00 noon.

     Assistance for Persons with Disabilities: Contact Carol Lewis by August 30, 2002, TDD 711 Relay.

     Submit Written Comments to: Carol L. Lewis, P.O. Box 47867, Olympia, WA 98504-7867, e-mail Carol.Lewis@DOH.WA.GOV, fax (360) 664-9077, by August 30, 2002.

     Date of Intended Adoption: September 30, 2002.

August 5, 2002

M. C. Selecky

Secretary

OTS-5767.3

Chapter 246-814 WAC

ACCESS TO DENTAL CARE FOR CHILDREN


NEW SECTION
WAC 246-814-010   Purpose.   The purpose of this chapter is to implement RCW 18.29.220 and 18.32.226. These laws are intended to improve access to dental care for low-income, rural, and other at-risk children by enhancing the authority of dental hygienists and dental assistants to provide dental sealant and fluoride varnish treatments in school-based programs. The department of health encourages partnerships within geographical regions and among participants in the oral health care community in implementing this law.

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NEW SECTION
WAC 246-814-020   Practices authorized.   (1) Dental hygienists. Solely for purposes of providing services under this chapter, dental hygienists holding endorsements under this chapter may assess by determining the need for (i.e., the absence of gross carious lesions and sealants) and acceptability of dental sealant and/or fluoride varnish treatment for children in school-based programs and may apply dental sealants and fluoride varnish treatments, without the supervision of a licensed dentist. This determination does not include or involve diagnosing conditions or constitute a dental examination.

     (2) Dental assistants. A dental assistant is currently defined by the Dental Quality Assurance Commission in WAC 246-817-510 as an unlicensed person working under the close supervision of a licensed dentist. Solely for purposes of this chapter, authorized dental assistants may apply dental sealants and fluoride varnish treatments to children in school-based programs under the general supervision of a Washington state licensed dentist, as described in this chapter.

     (a) Close supervision requires the licensed supervising dentist to first determine the need for and acceptability of dental sealant and fluoride varnish treatments, refer the treatment and the dentist must be in the treatment facility when the treatment is provided.

     (b) General supervision requires the licensed supervising dentist to first determine the need for and acceptability of dental sealant and fluoride varnish treatments, refer the treatment and the dentist does not have to be in the treatment facility when the treatment is provided.

     (3) Dental hygienists, dental assistants and their supervising dentists, shall coordinate with local public health jurisdictions and local oral health coalitions prior to providing services under this chapter, consistent with RCW 18.29.220 and 18.32.226.

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NEW SECTION
WAC 246-814-030   Application process and documentation of training required to qualify for endorsement.   (1) The department of health has issued endorsements to all dental hygienists holding valid licenses on or before April 19, 2001, the effective date of RCW 18.29.220.

     (2) Dental hygienists licensed after April 19, 2001, must obtain an endorsement to provide services under this chapter. Applicants must meet the additional requirements in RCW 18.29.220 and must submit the following to the department:

     (a) Application for endorsement;

     (b) Fee;

     (c) Information of having a valid Washington state dental hygiene license for reference; and

     (d) Proof of the completion of training that has incorporated the Washington state department of health sealant/fluoride varnish program guidelines as described in WAC 246-814-040(3).

     (3) Dental assistants employed by a Washington state licensed dentist on or before April 19, 2001, are not required to obtain an endorsement but may voluntarily do so without having to meet the additional requirements in RCW 18.32.226.

     (4) Dental assistants employed by a Washington state licensed dentist for two hundred hours after April 19, 2001, must obtain an endorsement to provide services under this chapter. Applicants must meet the additional requirements in RCW 18.32.226 and must submit the following to the department:

     (a) Application for endorsement;

     (b) Fee;

     (c) Proof of two hundred hours of employment as a dental assistant by a Washington state licensed dentist that has included theoretical and clinical training in the application of dental sealants and fluoride varnish treatments, verified by a declaration provided by the licensed dentist who provided the training; and

     (d) Proof of completion of training that has incorporated the Washington state department of health sealant/fluoride varnish program guidelines as described in WAC 246-814-040(3).

     (5) Dental hygienists, dental assistants and their supervising dentists should use the Washington state department of health sealant/fluoride varnish guidelines described in WAC 246-814-040 and other protocols that may be in place for the geographic region when coordinating with local public health jurisdictions. To assist the local public health jurisdictions and the practitioners in coordinating these services, a "letter of understanding" is recommended and would provide a means to address mutual concerns. It may include, but is not limited to:

     (a) Data collection requirements;

     (b) Delineation of responsibilities of the treatment providers and the local public health jurisdictions;

     (c) Quality assurance mechanisms; and

     (d) Communication with schools being served.

     (6) The dental hygienists, dental assistants, and supervising dentists shall coordinate with the local oral health coalitions by participating in oral health coalition meetings that may be held in the geographical region.

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NEW SECTION
WAC 246-814-040   Training and the provision of services.   (1) The "Washington state department of health sealant/fluoride varnish program guidelines" have been developed, maintained and distributed by the department of health in partnership with the oral health community and health care practitioners. To obtain copies of the "guidelines" contact the department of health.

     (2) The Washington state department of health sealant/fluoride varnish program guidelines are designed to assist the local public health jurisdictions and oral health care communities in the planning, implementation, and evaluation of school-based dental sealant and fluoride varnish programs. Every school-based dental sealant and fluoride varnish program should design their program to provide, at minimum, for the following:

     (a) Assessing and targeting the population.

     (b) Establishing community capacity and infrastructure.

     (c) Determining staffing needs and training.

     (d) Securing equipment and supplies.

     (e) Developing policies, procedures and data collection forms.

     (f) Scheduling schools/sites.

     (g) Preparing sites for implementation.

     (h) Providing services.

     (i) Evaluating the process and outcomes.

     (3) The Washington state department of health sealant/fluoride varnish program guidelines also provides the training required for dental hygienists and dental assistants providing services under this chapter. Applicants for endorsement must obtain training as contained in these specific guidelines, which can be met through any one of the following methods:

     (a) Graduation from a dental assisting, dental hygiene or dental educational program, accredited by the American Dental Association, which has incorporated the Washington state department of health sealant/fluoride varnish program guidelines.

     (b) Continuing education courses which teach the Washington state department of health sealant/fluoride varnish program guidelines.

     (c) Dental assistants and dental hygienists may obtain individualized training of the Washington state department of health sealant/fluoride varnish program guidelines from a Washington state licensed dentist, who has completed training through either:

     (i) A continuing education course, which teaches the Washington state department of health sealant/fluoride varnish program guidelines; or

     (ii) Graduation from a dental educational program accredited by the American Dental Association, which has incorporated teaching of the Washington state department of health sealant/fluoride varnish program guidelines.

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NEW SECTION
WAC 246-814-990   Endorsement fees for dental assistants and dental hygienists, renewal of endorsement not required.   (1) Endorsements do not require renewal.

     (2) Endorsement documents are issued to the qualified applicant, and are not the property of the employer or the supervisor.

     (3) The following one-time, nonrefundable fee will be charged:

     Dental assistant application/endorsement. . . . . . $50

     Dental hygiene application/endorsement. . . . . . . $50

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