WSR 11-05-033




[ Filed February 8, 2011, 2:24 p.m. , effective March 11, 2011 ]

     Effective Date of Rule: Thirty-one days after filing.

     Purpose: The purpose of these rules is to ensure that the state has rules that are consistent with federal regulations implementing the Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004) and state law under chapter 28A.155 RCW. Implementation of rules in conformance with IDEA 2004 is required for the receipt of federal funding.

     Citation of Existing Rules Affected by this Order: Repealing chapter 148-171 WAC, WAC 148-120-220, 148-120-225, 148-120-230, 148-120-236, 148-120-300, 148-120-301, 148-120-302, 148-120-303, 148-120-304, 148-120-305, 148-120-306, 148-120-307, 148-120-308, 148-120-309, 148-120-310, 148-120-311, 148-120-312, and 148-120-415, and amending WAC 148-120-100, 148-120-205, and 148-120-314.

     Statutory Authority for Adoption: RCW 72.40.0191.

     Other Authority: 42 U.S.C. §§ 1400 et seq.; chapter 28A.155 RCW.

      Adopted under notice filed as WSR 11-01-113 on December 17, 2010.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 2, Amended 0, Repealed 0; Federal Rules or Standards: New 2, Amended 0, Repealed 43; or Recently Enacted State Statutes: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 3, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 3, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: February 4, 2011.

Rick Hauan



AMENDATORY SECTION(Amending WSR 01-20-032, filed 9/26/01, effective 10/27/01)

WAC 148-120-100   Conduct violations.   A student who, either as actor, aider, abettor, or accomplice, violates any provision of this chapter shall be subject to the disciplinary actions herein adopted. A student may be an accomplice, or found to have aided and abetted in the commission of a violation of the student conduct code if he or she knowingly associates with the wrongful purpose, undertaking or activity; encourages, promotes, or counsels another student in the commission of an offense, or participates in it as in something he or she desires to bring about, and seeks by his or her action to make it succeed.

     The following offenses are prohibited:

     (1) Physical abuse. Actual, attempted, or threatened physical abuse of any person or conduct which threatens or endangers the health and safety of any person or which intentionally causes a reasonable apprehension of harm to any person.

     (2) Destroying or damaging property. Destroying, defacing, or damaging school property or the property of others on school premises or at school-sponsored activities.

     (3) Sexual harassment. Engaging in unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when:

     (a) Submission to the conduct or communication is made a term or condition, either explicitly or implicitly, of obtaining an education;

     (b) Submission to or rejection of that conduct or communication by a person is used as a factor in decisions affecting that person's education;

     (c) That conduct or communication has the purpose or effect of substantially or unreasonably interfering with a person's education; or creating an intimidating, hostile, or offensive educational environment.

     Sexual harassment may include, but is not limited to: Unwelcome verbal harassment or abuse; unwelcome pressure for sexual activity; unwelcome, sexually motivated or inappropriate patting, pinching, or physical contact; unwelcome sexual behavior or words, including demands for sexual favors, accompanied by implied or overt threats concerning a person's educational status; or unwelcome behavior, verbal, signed, or written words or symbols directed ((an [at])) at a person because of gender.

     (4) Disruption. Disorderly, intimidating or abusive behavior which interferes with the rights of others, school, or school-sponsored activities; obstructing the free movement of people or vehicles; inciting others to engage in prohibited conduct; or threatening disruption.

     (5) Insubordination. Refusal or failure to follow instructions and proper orders of school officials, while on school property, during transportation to and from school, or at school-sponsored activities, thereby infringing upon the rights and privileges of others, and/or refusal to desist from prohibited conduct.

     (6) False alarms. Falsely setting off, improper use or disabling of any safety equipment, alarm, exit sign, or other device.

     (7) False information. Filing a formal complaint which falsely accuses another with violation of this chapter, altering or falsifying information to school officials, or forging or tendering any forged instrument to the school.

     (8) Theft. Actual or attempted theft of property or services belonging to the school, any student, school employee(([,])), or school visitor, including knowing possession of stolen property.

     (9) Academic dishonesty. All forms of cheating, plagiarism and fabrication, including submitting any work product that the student misrepresents as his or her work product for the purpose of fulfilling any assignment or task required as part of the student's course of studies.

     (10) Conversion. Unauthorized use or possession of school equipment or services.

     (11) Unlawful entry and trespassing. Entering and/or remaining in any administrative or other employee office or any locked or otherwise closed school facility, in any manner, at any time, without permission.

     (12) Smoking. Students are not allowed to smoke or use tobacco products on school (([property] [premises])) premises or during school-sponsored activities.

     (13) Alcohol. Use, possession, distribution of, or visible intoxication from alcoholic beverages is prohibited on school property or at school-sponsored activities.

     (14) Drugs and controlled substances. Use, possession, distribution, or being visibly under the influence of any controlled substance (([or illegal drug])) or illegal drug as defined in WAC ((148-120-300)) 392-172A-05145(9), except when the use or possession of a drug is specifically prescribed as medication by an authorized medical doctor or dentist; possession of drug paraphernalia.

     (15) Weapons, lasers, and dangerous chemicals. Unauthorized use, possession, carriage, exhibition, or storage of any weapon, laser, explosives, ammunition, dangerous chemicals, substances or instruments, which is capable of causing bodily harm on another or damage upon school property or personal property, or any device that looks like or is alleged to be a firearm or explosive device.

     (16) Sexual violence. Sexual violence is a physical act of aggression or force or the threat thereof which involves the touching of another's intimate parts. Intimate parts include the primary genital area, groin, inner thighs, buttocks or breast, as well as the clothing covering these areas. Sexual violence may include, but is not limited to:

     (a) Touching, patting, grabbing or pinching another person's intimate parts, whether that person is of the same or the opposite sex;

     (b) Coercing, forcing, attempting to coerce or force the touching of anyone's intimate parts;

     (c) Coercing, forcing, attempting to coerce or force sexual intercourse or a sexual act on another;

     (d) Threatening to force or coerce sexual acts, including the touching of intimate parts or intercourse, on another; or

     (e) Threatening of forcing exposure of intimate apparel or body parts by removal of clothing.

     (17) Sexual activity and displays of affection. Sexual activity involves touching of another's intimate parts. Intimate parts include the primary genital area, groin, inner thighs, buttocks or breast, as well as the clothing covering these areas. Even if consensual or mutually agreed to, sexual activity is prohibited. Excessive displays of affection are not appropriate in school or at any school-related function. Prohibited conduct includes, but is not limited to: Any physical expression of affection that is intimate or sexual in nature, passionate or prolonged kissing, sexual touching, or fondling.

     (18) Pornography. Possession, distribution, display, creation or production of sexually explicit or erotic material. Sexually explicit material includes material defined in RCW 9.68.130. Erotic material includes material defined in RCW 9.68.050.

     (19) ((Malicious harassment. Harassment consists of verbal or physical conduct relating to a person's actual or perceived national origin, disability, race, sexual orientation, or religion, which has the purpose or effect of creating an intimidating, hostile or offensive academic, residential or work environment, or the purpose or effect of substantially or unreasonably interfering with a person's academic or work performance, or otherwise adversely affects a person's academic or work opportunities. Harassment may include: Name calling, gestures, bullying, mimicking, mocking, derogatory jokes, remarks or rumors, unwelcome touching of a person or clothing, offensive or graphic posters, book covers, notes or cartoons, graffiti, display or circulation of written materials or pictures, or any other malicious or insensitive conduct of a severe or pervasive nature directed at the characteristics of a person's national origin, customs, culture, disability, race, sexual orientation, or religion.)) Harassment, intimidation or bullying based on actual or perceived race, color, religion, ancestry, national origin, gender, gender identity, disability, socio-economic status, physical appearance, or other distinguishing characteristic. For purposes of this rule, harassment, intimidation, and bullying includes any intentionally written message or image, including those that are electronically transmitted including, but not limited to, sexting, which constitutes any threat of or act of physical, verbal, or emotional abuse, or attacks on the property of another, which has the effect of materially interfering with a student's education; is so severe, pervasive, or persistent, and objectively offensive as to threaten an individual or limit the individual's ability to work, study or participate in the activities of WSD, creates an intimidating or threatening education or residential environment, or has the effect of materially disrupting the orderly operation of the school or residential program.

     The term "sexting" as used in this rule means the sending, possession, displaying, or distribution of text messages and picture of an explicit sexual nature. Intentional acts refer to the individual's choice to engage in the act rather than the ultimate impact of the action(s).

     Harassment, intimidation, and bullying may include, but is not limited to, taunts, sexting, slurs, rumors, jokes, innuendos, demeaning comments, drawings, cartoons, pranks, gestures, ostracism, extortion of money, physical attacks, threats or other written, oral, physical or electronically transmitted messages or images.

     Harassment, intimidation, and bullying are often carried out through acts of misconduct, which are addressed and prohibited under other rules in this chapter.

     This rule does not prohibit the civil, respectful expression of religious or political views, provided that the expression does not materially disrupt the education environment.

     (20) Unauthorized absence. Absconding from supervision; leaving or running away from the campus, a residential facility, a school building, school activity or school-related function, or school-provided transportation without permission.

     (21) Gang activity. Claiming membership in, association with, affiliation with, or participation in a gang or gang-related activities at school ((or)), during school-related functions((. A gang is a self-formed association of peers having the following characteristics: A gang name and recognizable symbols, identifiable leadership, a geographic territory, a regular or recurrent meeting pattern, may be identified by law enforcement as a gang, and collective actions to engage in serious criminal, or violent behavior. The type of dress, apparel, activities, acts, behavior, or manner of grooming displayed, reflected, or participated in by a student shall not:

     (a) Lead school officials to reasonably believe that such behavior, apparel, activities, acts, or other attributes are gang-related, and would disrupt or interfere with the school environment or activity, and/or educational objectives;

     (b) Present a safety hazard to self, students, or staff;

     (c) Create an atmosphere in which a student, or other person's well-being is hindered by undue pressure, behavior, intimidation, overt gesture, or threat of violence; or

     (d) Imply gang membership or affiliation by written communication, marks, drawings, painting, design, emblem upon any school or personal property, or one's person)), or on any school property. "Gang" has the meaning given the term under RCW 28A.600.455. Prohibited dress, appearance and activities includes, but is not limited to: Clothing, accessories, personal items, or body markings, which symbolizes gang membership as reported by law enforcement agencies.

     (22) Extortion. Obtaining or attempting to obtain by threat or bribery, money, property or services (including sexual favors) of another. Threats include direct as well as indirect communication.

     (23) Hazing. Conspiring to engage in or participating in any method of initiation into a student organization or group, or any pastime or amusement engaged in with respect to such an organization or group that causes, or is likely to cause, bodily danger or physical harm, or serious mental or emotional harm, to any student. This does not include customary athletic events or other similar contests or competitions.

     (24) Misuse of computers, electronic data or electronic communications((.)), which may include, but is not limited to:

     (a) Unauthorized copying of school-owned or licensed software, copyrighted material, or another computer user's data for personal or external use((.));

     (b) Modifying or damaging, attempting to modify or damage, computer equipment, software, data bases, files needed in another person's school work, or communications lines;

     (c) Disrupting or attempting to disrupt computer operations;

     (d) Invading the privacy of another person by using electronic means to obtain confidential information, even if access to such information is inadvertently allowed;

     (e) Abusing, bullying, or harassing another person through electronic means;

     (f) Using the school's computing facilities in the commission of a crime or a violation of the student conduct code;

     (g) Using computer services without authorization;

     (h) Allowing another person to use one's computer identity/account or using another person's computer identity/account. This includes, but is not limited to, logging on to the account, accessing programs, and reading or altering computer records without authorization.

     (25) Other conduct. Any other conduct or action, the terms and violations of which are published annually in the student/parent handbook, in which the school can demonstrate a clear and distinct interest and which substantially threatens the educational process or other legitimate function of the school or the health or safety of any member of the school community is prohibited.

[Statutory Authority: RCW 72.40.011. 01-20-032, § 148-120-100, filed 9/26/01, effective 10/27/01. Statutory Authority: RCW 72.40.022. 94-13-058, § 148-120-100, filed 6/8/94, effective 7/9/94.]

AMENDATORY SECTION(Amending WSR 94-13-058, filed 6/8/94, effective 7/9/94)

WAC 148-120-205   Limitations.   (1) No form of disciplinary action shall be enforced in such a manner as to prevent a student from accomplishing specific academic grade, subject, or graduation requirement: Provided, That a student's academic grade or credit in a particular subject or course may be adversely affected as a result of excessive tardiness or absences.

     (2) Corporal punishment as defined by the ((board of education)) superintendent of public instruction in WAC ((180-40-235)) 392-400-235(4) as now or hereafter amended, is prohibited.

[Statutory Authority: RCW 72.40.022. 94-13-058, § 148-120-205, filed 6/8/94, effective 7/9/94.]

WAC 148-120-250   Discipline procedures.   Disciplinary procedures for students at WSD who are eligible for special education shall follow the requirements in WAC 392-172A-05140 through 392-172A-05175, which are adopted by reference. Students at WSD are subject to rules and procedures governing discipline for all students in public schools in chapter 392-400 WAC. WSD shall determine on a case-by-case basis whether and to what extent the rules and procedures in chapter 392-400 WAC may apply.


WAC 148-120-260   Reentry meeting following suspension.   After completing a period of suspension, the student shall be required to meet with an administrator and/or designated staff person upon return to school. Parents or guardians of students who have not reached the age of majority may accompany the student. The student should be prepared to acknowledge the behavior that led to suspension and commit to a plan to abide by the student conduct code, meet specific behavior expectations, and avoid repeated misconduct.


AMENDATORY SECTION(Amending WSR 01-16-100, filed 7/27/01, effective 8/27/01)

WAC 148-120-314   Aversive interventions.   WAC ((392-172-388)) 392-172A-03129 through ((392-172-396)) 392-172A-03135 are adopted by reference.

[Statutory Authority: RCW 72.40.011. 01-16-100, § 148-120-314, filed 7/27/01, effective 8/27/01.]


     The following sections of the Washington Administrative Code are repealed:
WAC 148-120-220 Short-term suspension.
WAC 148-120-225 Short-term suspension -- Notice and conference -- Grievance procedure.
WAC 148-120-230 Long-term suspension.
WAC 148-120-234 Long-term suspension -- Misconduct not a manifestation of disability--Notice.
WAC 148-120-236 Long-term suspension -- Misconduct not a manifestation of disability -- Hearing.
WAC 148-120-300 Disciplinary exclusion--Definitions.
WAC 148-120-301 Change of placement for disciplinary removals.
WAC 148-120-302 Removals--Ten school days or less.
WAC 148-120-303 Required services.
WAC 148-120-304 Change of placement--Removals for weapons or drugs.
WAC 148-120-305 Functional behavioral assessment and intervention plan.
WAC 148-120-306 Dangerous behavior--Authority of hearing officer.
WAC 148-120-307 Determination of interim alternative educational setting.
WAC 148-120-308 Manifestation determination review requirements.
WAC 148-120-309 Procedures for conducting a manifestation determination.
WAC 148-120-310 Determination that behavior was not manifestation of disability.
WAC 148-120-311 Expedited due process hearings.
WAC 148-120-312 Placement during appeals.
WAC 148-120-415 Appeals -- Long-term suspension and expulsion.


     The following chapter of the Washington Administrative Code is repealed:
WAC 148-171-001 Purposes.
WAC 148-171-010 Definitions.
WAC 148-171-015 Definition and eligibility criteria for deafness and hearing impairment.
WAC 148-171-100 Initial assessment.
WAC 148-171-110 General areas of evaluation.
WAC 148-171-120 Evaluation procedures.
WAC 148-171-131 Evaluation report and documentation of determination of eligibility.
WAC 148-171-140 Independent educational evaluation.
WAC 148-171-150 Admission and placement--Annual review.
WAC 148-171-210 IEP meetings.
WAC 148-171-220 Participants in IEP meetings.
WAC 148-171-230 Parent participation and involvement.
WAC 148-171-240 Individualized education program.
WAC 148-171-242 Individualized education program--Implementation.
WAC 148-171-244 Individualized education program--Development, review, revision--Consideration of special factors.
WAC 148-171-410 Reevaluation.
WAC 148-171-500 When prior notice must be given.
WAC 148-171-510 Contents of prior written notice.
WAC 148-171-512 Parent consent.
WAC 148-171-514 Transfer of parental rights at age of majority.
WAC 148-171-550 Mediation.
WAC 148-171-601 Due process rights and procedures.
WAC 148-171-605 Request for hearing, notice by parent.
WAC 148-171-650 Surrogate parents.


Chapter 148-172 WAC


WAC 148-172-001   Purposes.   The purposes of this chapter are:

     (1) To implement chapter 72.40 RCW in a manner that is compatible with chapters 28A.155 RCW and 392-172A WAC, and in compliance with the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. Sec. 1400 et seq.; and

     (2) To meet the obligations of additional federal and state civil rights laws (e.g., 29 U.S.C. Sec. 794, 42 U.S.C. Sec. 12132, RCW 49.60.030) that apply to students who have a disability regardless of the student's eligibility for special education and related services.

     (3) Unless the context clearly requires otherwise, the rules for the provision of special education, contained in chapter 392-172A WAC, are incorporated by reference: Provided, That the Washington state center for childhood deafness and hearing loss (center) may undertake the responsibilities of a local educational agency (LEA) in providing a free appropriate public education only to the extent authorized by chapter 72.40 RCW and inclusion as an LEA makes the center eligible for assistance under the Individuals with Disabilities Education Act.

     (4) This chapter sets forth rules and procedures applicable to the provision of special education and related services for eligible students at the center. It should be read in conjunction with chapter 392-172A WAC. In case of any conflict between specific rules and procedures adopted herein, and the rules and regulations in chapter 392-172A WAC, the specific rules and procedures shall control.

     (5) Where the term "school district" is used in this chapter, it shall mean the LEA or local school district, as defined and described in RCW 28A.315.025, where a student would be enrolled and/or attending.


WAC 148-172-100   Admission and initial evaluation.   (1) A parent, guardian, local education agency or school district may refer a student for admission to the Washington state school for the deaf (WSD) at the center. Students who are eighteen years old or are deemed to have reached the age of majority, consistent with RCW 26.28.010 through 26.28.020, and who are eligible for special education may self-refer for admission.

     (2) An application packet for new students may be obtained by contacting the office of the superintendent at 360-696-6525 x0401 V/TTY, or through the link on the school's web site at Applications for admission shall include the reason(s) for referral.

     (3) WSD will assess the appropriateness of admission by first considering the student for evaluation in a diagnostic placement. A diagnostic placement allows school personnel to obtain necessary information about the student's needs and to evaluate how the student will fare in a placement at WSD. The diagnostic placement is limited to forty-five school days. A visit by the parent(s)/guardian(s) and student to WSD is required before a diagnostic placement is initiated.

     (4) WSD will request the following records from the student's current school district. All requested records must be received before the admissions team will consider and make a decision on the application for a diagnostic placement:

     (a) All completed forms and material in the application packet;

     (b) Student's most recent individualized education program (IEP);

     (c) Student's most recent triennial evaluation report;

     (d) All psychological records;

     (e) High school transcripts or academic records and report cards;

     (f) Records of all behavioral information, including history of criminal or violent behavior; past, current or pending disciplinary history; and other behavior that indicates the student could be a threat to the safety of staff and students; and information that would be required under RCW 28A.225.330. Any falsification of or withholding of information will result in the termination of the application process, the evaluation, or continued placement; and

     (g) Needs assessment inventory interview (NAII) and safety risk matrix completed by the parent(s).

     If access to necessary information requires parental or student consent for the exchange of information with a third party, all such written consents must be attached to the completed application.

     (5) If a student is deemed to pose a safety risk after review of the records submitted during the admissions process, the admissions team and/or the superintendent may:

     (a) Deny the application for diagnostic placement; or

     (b) Develop a safety plan designed to mitigate perceived safety risk(s).

     If the safety plan can be implemented within existing resources at WSD, the admissions team may accept the student for diagnostic placement. If all elements of the safety plan cannot be accomplished within existing resources at Washington school for the deaf, the application shall be denied unless additional resources which are needed to ensure the safety of the student, staff and other students can be provided through an interagency agreement with the LEA or other agency.

     (6)(a) Upon approval of the application for diagnostic placement, the admissions team will establish the beginning date of the diagnostic placement.

     (b) The LEA or school district is responsible for ensuring that the student's IEP and evaluations remain current and valid through the end of the diagnostic placement.

     (c) The admissions team will review the student's current IEP from the LEA or school district to ascertain whether any modifications should be considered or made for the purposes of the diagnostic placement. All modifications must be approved by the parent. Modifications to a student's educational program for the purposes of a diagnostic placement shall not constitute a change in placement for purposes of the Individuals with Disabilities in Education Act or stay-put under WAC 392-172A-05125.

     (d) The admissions team will provide prior written notification to the parent, LEA or school district that the diagnostic placement shall not exceed forty-five school days and shall not become the student's stay-put or current educational placement should the parent(s) or school district contest the decision on the student's educational placement at the conclusion of the diagnostic placement.

     (7) Residential program services may be available to a student during a diagnostic placement: Provided, That:

     (a) The student is accepted into the academic program for diagnostic purposes;

     (b) The residential program has space available and can provide the needed services;

     (c) A one-way commute by school bus is greater than sixty minutes; and

     (d) The student is able to finger-feed, chew and swallow most foods, indicated need for help when self-soiled or wet, and assist in self-dressing and bathing.

     (8) Prior to the end of the diagnostic placement timeline, the admissions team will meet to determine whether the student may be enrolled at WSD.

     (a) If enrollment is approved, one of the following options will occur:

     (i) The student's evaluation and IEP from the school district is reviewed and adopted following office of the superintendent of public instruction (OSPI) transfer procedures;

     (ii) The student's evaluation from the school district is reviewed and accepted following OSPI transfer procedures, and a new IEP is developed; or

     (iii) WSD will conduct a reevaluation and develop a new IEP.

     (b) If enrollment is denied, partnerships and interagency agreements with LEAs and school districts may be developed to support a student's educational placement at the school for the deaf when a lack of existing resources is a reason for denying enrollment. WSD does not constitute a potential stay-put placement for students who have been denied enrollment but may be receiving services at WSD pursuant to an interagency agreement.

     (9) Pursuant to RCW 72.40.040, WSD shall not admit and may not retain any student who is an adjudicated sex offender, classified level III pursuant to RCW 13.40.217 or 72.09.345. It is the policy of the school to deny admission to any student who has sexually abused, assaulted or victimized any student who is currently enrolled at WSD.


WAC 148-172-105   Assessment to identify students at risk for sexually aggressive behavior is not an evaluation.   The assessment to identify residential students who present a moderate or high risk of sexually aggressive behavior or who may be vulnerable to victimization by such students, required by RCW 72.40.270, shall not be considered an evaluation for eligibility for special education and related services.


WAC 148-172-200   Child find.   The purpose of child find is to locate, evaluate and identify children with suspected disabilities in need of special education services including those who are not currently receiving special education and related services and who may be eligible for those services. In conjunction with child find activities conducted by school districts pursuant to WAC 392-172A-02040 and the reports on deaf or hard of hearing children provided by educational service districts pursuant to RCW 72.40.070, CDHL will provide an on-line survey three times per school year (fall, winter, spring) to all special education directors to identify children within their districts who are deaf, deaf-blind or hard of hearing; information to school districts regarding service delivery options in the state for students who are deaf, deaf-blind or hard of hearing; a resource and referral guide listing programs and services available statewide; and a mechanism for school districts to request training and/or consultation support for district personnel.


WAC 148-172-300   Least restrictive environment.   Notwithstanding the provisions of WAC 392-172A-02050, the IEP team may conclude that a student will receive greater benefit from education in a specialized setting due to specific instructional and related services needs such that the least restrictive environment and appropriate placement for a student may be WSD.


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