Budget Bills Lock Into Law Ducey and Christ’s Micromanagement of K-12, Universities, Community Colleges, Cities, Counties and Businesses

HARMFUL RESTRICTIONS ON THE ACTIONS THAT CAN BE TAKEN BY SCHOOLS, BUSINESSES, CITIES AND COUNTIES FROM EXECUTIVE ORDERS WILL BECOME ACTUAL LAW

As I wrote about last week, Ducey & Christ have been consistently misusing the Public Health Emergency authority in ways that harm the COVID-19 response.

The purpose of declaring a public health emergency is to give governors and health directors authority to do things that they normally can’t… allowing them to conduct interventions to help mitigate the public health crisis using authority that they don’t normally have.

Sadly, rather than use their emergency authority for good things, they have been using it to prevent cities, counties, K-12, businesses, universities, and community colleges from doing things that they want to do to manage COVID in their organizations (see this blog post on their misuse of emergency authority).

Ducey & Christ have no interest in lifting the emergency declaration anytime soon because they are enjoying the authority that the public health emergency declaration gives them to micromanage cities, counties, businesses, the K-12 system, universities and community colleges.

However, during the budget negotiations, some legislators conditioned their support of the budget on rescinding the state of emergency.

Ducey and Christ responded by locking in their restrictions on K-12, universities, businesses, community colleges, cities, and counties by including their harmful restrictions on those entities into a budget reconciliation bill (SB 1819).

SB 1819 Prohibits a county, city or town from making or issuing any order, rule, ordinance or regulation related to mitigating the COVID-19 pandemic that impacts private businesses, schools, churches or other private entities, including an order, rule, ordinance or regulation that mandates the use of face coverings, requires closing a business or imposes a curfew.

In addition, Ducey & Christ ensured that school districts can’t  require masks this fall (even elementary school students – who will not qualify for the vaccine by fall). They were able to insert this language into the K-12 budget bill – HB 2898:

15-342.05Face coverings; requirement prohibition

A school district governing board may not require the use of face coverings by students or staff…

Likewise, they locked in their executive order restrictions on university and community college COVID intervention strategies by inserting the following language into the higher education BRB (HB 2897):

15-1650.05. COVID-19 vaccine; face covering; testing

A public university or a community college may not require that a student obtain a COVID-19 vaccine or place any conditions on attendance or participation in classes including mandatory testing or face covering usage.

In other news, SB 1819 puts substantial limitations on the ability of  a future  governor and a health director to declare a public health emergency. SB 1819:

  • Caps the next governor’s initial public health state of emergency at 30 days (beginning 2/2/23).

  • Allows the next governor to extend a public health emergency for up to 120 days and prohibits subsequent extensions to 30 days.

  • Terminates a public health emergency after 120 days unless extended by the Legislature.

  • Allows the Legislature to extend the state of emergency, limiting extensions to 30 days.

Editorial Note: I’m not sure whether SB 1819 is good or not. If we were to have a public health emergency in the future with a thoughtful governor and compassionate & competent health director, limits on their emergency authority would be bad.

However, if we face a future public health emergency with persons like Ducey and Christ again, the limitations would be good, as they are now, on balance, using their emergency authority for bad rather than good things.

The entire package is expected to be sent to the governor and rubber-stamped before midnight Wednesday.

State Legislature & Ducey to Enact Sweeping Income Tax Cuts Benefitting the Rich

DECREASED REVENUE IMPAIRS STATE’S LONG-TERM ABILITY TO INVEST IN EDUCATION & PUBLIC HEALTH

Last November, Arizona voters approved Proposition 208 by a wide margin (more than 100,000 votes). Prop 208 implemented a 3.5% income tax surcharge on income above $250,000 for single filers and $500,000 for those filing jointly. The motive behind the initiative was to improve Arizona’s long-standing status as the among the lowest per-pupil spending in the U.S. (Arizona is 48th in per student spending at $8,239).

The surcharge was estimated to raise $800M per year and was supposed to be used for teacher and classroom support staff salaries, teacher mentoring and retention programs, career and technical education programs, and the Arizona Teachers Academy.

Prior to Prop 208, the highest income tax rate in Arizona was 4.5%, which was levied on income above $159,000 (single filing) or $318,000 (joint filing). Based on the then-existing income tax rates, Prop 208 would have increased the tax rate from 4.5% to 8% on income above $250,000 (single filing) or $500,000 (joint filing).

It’s no secret that Governor Ducey was opposed to Proposition 208, as he campaigned against it vigorously and was sorely disappointed when it passed. Once it passed, his attempts to un-do it were two fold: 1) try to get the courts to overturn the measure; and 2) develop an an income tax proposal that would unravel it.

Thus far, the judicial challenge hasn’t yet bore fruit (although the Arizona Supreme Court has yet to rule on a challenge case). However, his legislative effort to unravel Prop 208 was successful last week.

The budget bills that he shepherded through the legislature get rid of all the funds that Prop 208 would have brought in and goes much further… permanently reducing additional revenue for many years to come. Revenue that could have been used to improve K-12 education, public health, affordable housing assistance, and safety net programs like services for persons with developmental disabilities.

The income tax cuts that he will be signing on Monday or Tuesday will be phased-in over the next few years, so the reduced revenue will be a problem for his successor, not himself (he’ll be gone from office in 18 months).

Governor Ducey, his state agency director surrogates, and other wealthy supporters continued to amplify the phrase that “the average tax reduction per year is $300 per person”. Basically, in order to spin and dupe the public, he averaged the total cuts over all filers in order to hide the fact that basically all the tax giveaway is going to his wealthy friends (and himself).

$760M OF THE TAX CUT WILL GO TO THE 9,600 PEOPLE THAT EARN MORE THAN $1M/YEAR. 44% OF ALL THE TAX CUTS WILL GO TO 0.3% OF TAX FILERS.

A previous voter initiative requires a 2/3 vote of the legislature to increase any tax, while cutting taxes requires a simple majority. At some point in the next governor’s term there will likely be a fiscal crisis that will need to be addressed. My fear is that, as was the case in 2011, the proposed solution will be a sales tax increase, which disproportionately falls on lower income folks.

Journal Article of the Week:

NATURE: NATURALLY ENHANCED NEUTRALIZING BREADTH AGAINST SARS-COV-2 ONE YEAR AFTER INFECTION

This study found that immunity in previously infected but unvaccinated persons is is long lasting. Previously infected persons that get vaccinated post infection produce additional antibodies and memory B cells that increase immunity and are protective against circulating SARS-CoV-2 variants.

“In the absence of vaccination antibody reactivity to the receptor binding domain (RBD) of SARS-CoV-2, neutralizing activity and the number of RBD-specific memory B cells remain relatively stable from 6 to 12 months.

Vaccination increases all components of the humoral response, and as expected, results in serum neutralizing activities against variants of concern that are comparable to or greater than neutralizing activity against the original Wuhan Hu-1 achieved by vaccination of naive individuals.”

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Much at Risk Next in the Next 10 Days as the Legislature Continues to Work On a Budget

Work on the state budget was upended last week by a legislative special session to address wildfire funding. The special session ended with a bipartisan $100M bill to address wildfire prevention and response, but it remains unclear when the state budget will be adopted, except that the state constitution requires the legislature to come up with some kind of budget by midnight on Wednesday, June 30.

After an unsuccessful attempt to pass the budget last week, Senate and House Republican leaders say that they won’t bring budget bills to the floor until they’re sure they have the necessary 31 and 16 votes to pass a budget. Representative Cook and Senator Paul Boyer have expressed concern about Republican leadership and Governor Ducey’s tax cut proposal which would benefit the wealthiest Arizonans.

The draft budget being shopped by the Governor, his staff, and his agency directors includes a permanent $1.9B tax cut over 3 years. A previous voter initiative requires a super-majority to pass any future tax increase- which means that any permanent tax cut will indeed be permanent.

SEE THIS INSIGHTFUL OP-ED BY FORMER GOVERNOR BREWER ABOUT THE DANGERS OF DUCEY’S DRAMATIC TAX DECREASE PROPOSAL FOR THE WEALTHIEST ARIZONANS

In a hard-ball move a couple of weeks ago designed to brow-beat legislators, the Governor vetoed more than 2 dozen bills that had bi-partisan support including Important Governance Bills relating to the Arizona State Hospital & the Psychiatric Security Review Board and $15M in Funding from the Medical Marijuana Fund for Research & Public Health Prevention.

AzPHA Celebrates Juneteenth

On “Freedom’s Eve,” or the eve of January 1, 1863, some of the first Watch Night services took place. On that night, enslaved and free African Americans gathered in churches and private homes all across the country, awaiting news that the Emancipation Proclamation had taken effect. At the stroke of midnight, prayers were answered as all enslaved people in the Confederate States were declared legally free. Union soldiers, many of whom were Black, marched onto plantations and across cities in the south, reading small copies of the Emancipation Proclamation, spreading the news of freedom in Confederate States. Only through the Thirteenth Amendment did emancipation end enslavement throughout the United States.

But not everyone in Confederate territory would immediately be free. Even though the Emancipation Proclamation was made effective in 1863, it could not be implemented in places still under Confederate control. As a result, in the westernmost Confederate state of Texas, enslaved people would not be free until much later. Freedom finally came on June 19, 1865, when some 2,000 Union troops arrived in Galveston Bay, Texas. The army announced that the more than 250,000 enslaved Black people in the state were free by executive decree.

The newly emancipated responded with cries of joy and prayers of gratitude — a celebration that became known as Juneteenth. Black Texans marked the day each year with parades and picnics, music, and fine clothes. The gatherings grew through the aborted promise of Reconstruction, through racial terror and Jim Crow, and through the Great Depression, with a significant revival in the 1980s and 1990s.

Last summer, amid the racial-justice protests following the murder of George Floyd, millions of White Americans became aware of Juneteenth for the first time. Some companies announced they would give employees the day off on Juneteenth, and momentum grew to make it a national holiday.

One hundred fifty-six years later, the Senate voted unanimously to do just that. The House moved quickly Wednesday to pass the bill, approving the measure in a 415-to-14 vote. President Biden signed the bill in the East Room on Thursday, making Juneteenth the first new federal holiday since 1983, when Martin Luther King Jr. Day was created.

Juneteenth marks our country’s second independence day. This day shows the value of never giving up hope in uncertain times. AzPHA celebrates this hope and encourages everyone to consider Sankofa, which expresses the importance of reaching back to knowledge gained in the past and bringing it into the present to make positive progress.

Read more here and watch more here. Teach your children and/or grandchildren about Juneteenth with this video.

U.S. Supreme Court Rejects Attorney General Brnovich’s Argument & Upholds the Affordable Care Act

In a 72-page opinion today, the U.S. Supreme Court upheld the Affordable Care Act again, rejecting the arguments made by Texas and 17 other states (including Arizona) that the Affordable Care Act is unconstitutional.

The Court upheld the ACA back in 2012 finding that the tax penalty for not having health insurance was well within Congress’ authority, and that therefore, the ACA was constitutional (except that the court held that states could not be compelled to expand Medicaid). The 2012 Supreme Court opinion rejected the argument that Congress’ authority to regulate interstate commerce made the ACA constitutional.

The Plaintiffs (including Attorney General Brnovich) in todays California v. Texas case argued that Congress’ authority to pass the ACA was eliminated when the penalty (tax) for not having health insurance went to 0 after Congress passed the 2017 tax cut law.

Here’s an analysis of today’s case by James G. Hodge, Jr., JD, LLM, a Peter Kiewit Foundation Professor of Law at ASU’s Sandra Day O’Connor College of Law:

California v. Texas (U.S. Supreme Court, June 17, 2021): In a brief, 7-2 majority Opinion, the U.S. Supreme Court rejected all constitutional and other claims brought against the continued enforcement and implementation of the Affordable Care Act’s (ACA) individual mandate, dismissing multiple state and individual plaintiffs’ claims for lack of standing. Justice Breyer, writing for the majority, concludes “the plaintiffs . . . failed to show a concrete, particularized injury fairly traceable to enforcement of the individual mandate provision of the ACA.”

Since Congress zeroed out the penalty for the individual mandate through the Tax Cuts and Jobs Act of 2017, individuals cannot assert a specific injury because the mandate can no longer be enforced. As for Texas and 17 other states’ alleged injuries the Court viewed their claims as similarly specious. States “have failed to show that the challenged minimum essential coverage provision, without any prospect of penalty, will harm them by leading more individuals to enroll in these programs.”

In a biting, dissenting opinion, Justices Alito and Gorsuch criticize the Court for brokering an “improbable rescue” of the ACA (as per its prior Opinions) through a “fundamental distortion” and “flat-out misstatements” of long-standing jurisprudence on standing. In essence, as Justice Alito argues, the injuries alleged by the states related to ACA implementation are directly “traceable,” or at least sufficiently tied to, the unlawful mandate provisions.

Determining the lawfulness of the ACA’s individual mandate is the only way to redress these injuries. While the dissent deems the mandate unconstitutional, along with the rest of the ACA, the majority disagrees, and the case is dismissed.

The ACA led to tremendous gains in the rate of children’s health coverage in Arizona. As CAA’s most recent KIDS COUNT Data Book demonstrates, the rate of uninsured children in our state dropped from 13% in 2012 to 8% in 2018. While funding for outreach and enrollment support has been cut, anti-immigrant rhetoric and policies, such as the new public charge rule, has deterred many families from enrolling in health care.

The Urban Institute recently projected that more than 21M Americans will be newly uninsured in 2022, including 1.7 million children if the ACA had been overturned by the Supreme Court. Those most at risk of losing coverage are people with incomes below 200% of the federal poverty level and people of color. In Arizona alone 223,000 non-elderly individuals are likely to become uninsured if the ACA is repealed.

Other key protections that would have been lost if Attorney General Brnovich had been successful in finding the ACA is unconstitutional include:

  • A guarantee that plans cover the 10 essential health benefits;

  • Marketplace insurance plans and the subsidies that make them more affordable;

  • Protections for pre-existing conditions and a guarantee that folks with pre-existing conditions can’t be charged more;

  • Medicaid expansion;

  • The ability to keep dependents on health insurance plans until they’re 26The chance to keep dependents with disabilities on your insurance indefinitely, and

  • A host of other wellness incentives (and a whole lot more).

Ducey & Christ Again Use Their Emergency Power Authority for Harmful Purposes

IT’S TIME TO END THE PUBLIC HEALTH EMERGENCY DECLARATION BECAUSE THEY ARE NOW CONSISTENTLY MISUSING THEIR EMERGENCY AUTHORITY

The purpose of declaring a public health emergency is that it gives governors and health directors authority to do things that they normally can’t… allowing them to conduct interventions to help mitigate the public health crisis using authority that they don’t normally have.

The governor declared the current public health emergency on March 11, 2020. That declaration gave Governor Ducey broad emergency powers under ARS 26-303 and Director Christ sweeping public health powers under ARS 36-787.

In the first weeks of the pandemic, they used their emergency authority for mostly good things like the original stay at home order, a moratorium on evictions, enhanced public health surveillance, and operational and reporting directives to hospitals.

Once May, 2020 arrived, they resisted using their authority for good things. They refused to use their emergency authority to implement an enforceable statewide mask mandate even after the evidence was compelling that it was the most effective intervention that we had at the time. They also refused to do any meaningful enforcement of mitigation measures in bars, restaurants and nightclubs (except during the summer “pause”). The list goes on.

They even began using their authority for bad things, like preventing locals from putting in place mask mandates (they finally allowed that at the very end of June – but a revoked it again a couple of months ago). They are also prohibiting businesses from inquiring about a person’s vaccine status (EO 2021-09). They have been micromanaging the K-12 system in a variety of ways for harmful purposes.

Yesterday, they used their ARS 26-303 and ARS 36-787 emergency authority to prevent the universities and community colleges from implementing reasonable mitigation measures this fall (see E.O. 2021-15).

ASU had designed a mitigation plan for this fall that was thoughtful, calibrated and evidence based. The policy recognized the risk difference between vaccinated and unvaccinated students and managed those risks appropriately by requiring unvaccinated students to undergo periodic testing and to wear a mask on campus. Ducey & Christ’s Executive Order micromanages the universities and community colleges by dictating that they can’t have a policy that distinguishes between vaccinated and unvaccinated students.

Remember, the value of declaring a Public Health Emergency is that it allows them to conduct helpful interventions. So the question becomes, are Ducey and Christ using their emergency authority for anything helpful at this point?

I just scoured all the executive orders, and I’d say that the only helpful thing that Ducey and Christ are using their emergency authority for right now is to require COVID-19 surveillance reporting (e.g. COVID-19 case and hospital capacity reporting), which helps track the trajectory of the epidemic and provide hospital capacity data.  The E.O.’s with those requirements have been extended several times during the pandemic (every 60 days). The latest extension is E.O. 2021-14, which extends the reporting requirements until the end of July.

However, the ADHS has existing non-emergency rulemaking authority that could have and should have used long ago to make COVID-19 a new reportable illness. Astonishingly, Director Christ has not yet made COVID-19 reportable (see the Communicable Disease Reporting Rules).

At this point, it is clear that Governor Ducey and Director Christ are far more interested in using their ARS 26-303 and ARS 36-787 public health emergency authority for harmful rather than helpful purposes. Yesterday’s executive order micromanaging the universities and community colleges and preventing them from implementing reasonable and calibrated plans for this fall clearly demonstrates that, from this point forward, they will only be using their authority to harm rather than help the response.

The only remaining helpful Order requires laboratories and doctors to report COVID-19 cases, something that they are accustomed to doing by now and would likely continue to do if they were to lift the emergency declaration. Additionally, it is nonfeasance on the part of Director Christ that she has not made COVID-19 illness reportable by now (15+ months into the public health emergency).

However, Governor Ducey & Director Christ will not be lifting the emergency declaration anytime soon because they are clearly enjoying the authority that the public health emergency declaration gives them to micromanage cities, counties, businesses, the K-12 system and now universities and community colleges.

Data Are Rolling In Regarding the Effectiveness of Mitigation in Schools

WHAT ARE THE RESULTS?

A CDC MMWR released last week found that mitigation measures like masks and distancing were quite effective at slowing the spread of COVID-19 in schools. A new MMWR entitled Mask Use and Ventilation Improvements to Reduce COVID-19 Incidence in Elementary Schools found that rates of COVID-19 were 37% lower in elementary schools that required teachers and staff to use masks, and 39% lower in schools that took steps to improve ventilation.

In schools that improved ventilation alone (e.g. open windows, fans), COVID-19 incidence was 35% lower. Schools that combined opening windows with filtration had a 48% reduction.

Another article in the journal Science entitled Household COVID-19 risk and in-person schooling found even more striking results.

Researchers found that school-based mitigation measures (when done properly and in tandem) reduce the spread of COVID-19 so much that it is statistically the same as going to distance learning. Here’s an excerpt from the article:

School-based mitigation measures are associated with significant reductions in risk, particularly daily symptoms screens, teacher masking, and closure of extracurricular activities. A positive association between in-person schooling and COVID-19 outcomes persists at low levels of mitigationbut when seven or more mitigation measures are reported, a significant relationship is no longer observed.

Teachers working in schools had an increased risk of COVID-19, but in schools implementing effective interventions, the risk was similar to that in other in-person occupations (e.g., health care or office work). Although in-person schooling was associated with household COVID-19 risk, the risk can likely be controlled with properly implemented school-based mitigation measures.

The most important school interventions were daily symptom checks, teacher masking, and closure of extracurricular activities.

This and future research regarding the effectiveness of school-based mitigation measures provides valuable information for school districts and parents this fall, especially for grades K-5 (right now the Pfizer vaccine is only authorized for kids 12 years old and up). The evidence in these articles suggest that implementing and adhering to targeted interventions can allow schools to safely stay in-person.

June 2021 Arizona Screenings and Panel Discussion ERNIE & JOE: CRISIS COPS

Diverting community members away from jail and into mental health treatment, one 911 call at a time. That’s the focus of the Emmy-award winning documentary Ernie & Joe: Crisis Cops.

Vitalyst Health Foundation, The David & Lura Lovell Foundation, and The NARBHA Institute have partnered to bring this powerful film back to Arizona in June for a series of screenings.

Leaders and individuals from law enforcement, the fire service, emergency medical services, emergency dispatch, behavioral health services, and community members are invited to register now for a free regional screening.

HBO has captured the San Antonio Police Department’s pioneering crisis intervention approach in an Emmy Award-winning documentary, and Vitalyst is pleased to be offering free virtual screenings.

By region, the Zoom-based “Ernie & Joe Crisis Cops” events will span the month of June, starting with Maricopa County’s screening on June 3. The screenings are open to leaders and individuals from law enforcement, the fire service, emergency medical services, emergency dispatch, and behavioral health services. The abridged, 35-minute screening will be followed by a live panel Q&A.

As communities reckon with the behavioral health impacts of the pandemic and more, the work modeled by Ernie and Joe in this documentary is more important than ever. All Arizonans are encouraged to view the full documentary via HBO, and our first responders are urged to click here to register today for their free regional screening events. See below for more information about the upcoming screenings and to register:

Contact: hello@kominote.org with any questions.

Syringe Services & Fentanyl Test Strips Finally Legalized

The opioid epidemic is one of the greatest public health crises of our time. The causes of are deep and the public health interventions needed to ease the crisis are many. Those interventions include changes to prescribing practices, distribution of naloxone, more robust treatment options including Medically Assisted Treatment, and harm reduction and engagement strategies like Syringe Services.

We need all those tools working together to mount an effective response. Arizona’s Opioid Epidemic Act was an important law that is addressed many of those factors- but not all. Things that weren’t included in the Act (despite strident advocacy by numerous organizations including AzPHA) include decriminalizing syringe service programs and legalizing fentanyl testing strips.

As this 2019 report by Stephanie Innes in the Arizona Republic shows, needle exchange efforts in Arizona have been impaired because some of the things that syringe service programs do had been felonies under state law.

Syringe services programs are community-based prevention efforts that offer a range of interventions. They provide access to and disposal of sterile syringes and injection equipment, linkage to substance use disorder treatment, and naloxone distribution. People who use syringe service programs gain access to other vital services including vaccination, testing, and linkage to care and treatment for infectious diseases including viral hepatitis and HIV.

Nearly 30 years of research shows that comprehensive syringe service programs are safe, effective, and reduce overall health costs. They play an important role in reducing the transmission of viral hepatitis, HIV, and other infections and are a major component of the Ending the HIV Epidemic: A Plan for America initiative.

The U.S. Surgeon General determined that syringe service programs don’t increase the illegal use of drugs by injection. Studies also show that they protect the public and first responders by providing safe needle disposal.

Sadly, syringe service and fentanyl test strips have been considered drug paraphernalia under Arizona law (a class 6 felony). While arrests, indictments and convictions of workers that operate syringe service programs have been rare, the fact that syringe service programs are illegal has had a chilling effect on the ability of organizations and individuals to operate and fund these important programs.

After all- it’s pretty hard to get a grant award if you need to disclose to the funder that you intend to commit felonies with the money! A cohort of public health organizations led by Sonoran Prevention Works have been trying for the last 4 years to simply decriminalize syringe service programs & legalize fentanyl test strips.

This year those efforts were finally successful.

The governor signed SB1250 overdose prevention which makes it legal for cities, towns, counties, and NGOs to implement a syringe service programs. While the state still can’t technically operate a syringe exchange program, there’s no restriction on the state funding syringe service programs with the copious money on the way from the American Rescue Act Plan.

The governor also signed SB1486 drug paraphernalia, testing equipment sponsored by Senator Marsh. This bill (once it becomes law 90 days after the end of session) will make it possible for folks to buy fentanyl test strips to make sure that any drug they have is free from fentanyl. Fentanyl has become the dominant cause of opioid deaths in the last few years and is rapidly increasing (see Figure 14 in our landmark (opioid epidemiology report).

NEW OPPORTUNITIES

Making syringe service and fentanyl test strips legal provides a big opportunity for AHCCCS, ADHS and the county health departments to fund syringe service and fentanyl test strip programs.

Because of the American Rescue Plan Act, there are more resources than ever to implement these programs. SAHMSA’s Community Mental Health Services Block Grant Program and Substance Abuse Prevention and Treatment Block Grant Program will be dispersing $1.5B to states in the next 2 years.

These supplemental funding awards are in addition to the usual $2.5B award. Here’s a press release and information on the supplemental awards. Arizona’s share of the pie is about $80M!

Back in the day, these SAHMSA substance abuse funds were managed by the ADHS. These days they’re managed by AHCCCS’ Substance Abuse Prevention and Treatment Block Grant.: FY 2021 Substance Abuse Prevention and Treatment Block Grant Program American Rescue Plan Supplemental Awards.

The combination of the passage of these important new laws and the substantial increase in funding from the American Rescue Plan Act provide a terrific opportunity to implement both of these evidence based best practices in a big way.

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