Strict Screening for All Nursing Home Employees

According to the Orange County Register, local officials believe that a 28-year-old Riverside resident named David Moreno may have assaulted numerous victims while working as a maintenance worker at Emeritus Senior Living in Yorba Linda. Officials are asking if anyone has information regarding the matter, to please contact the Orange County District Attorney’s Office.

Moreno is already facing a felony sexual battery on an institutional victim charge and a felony sexual penetration by a foreign object of an incompetent victim charge. These acts allegedly occurred in June or July of 2012 when Moreno went into the room of a resident suffering from dementia.

Moreno plead guilty and is free on a $100,000 bail.

Investigators believe that there may be more victims. Many of our previous blogs that discussed instances of nursing home abuse described situations where nursing home nurses or administrators were involved. Nursing home orderlies on numerous occasions have been caught abusing residents. A key issue for both in home and nursing home staff revolves around the hiring practices of nursing homes and in home care staffing agencies. Background checks and references are almost always required, but rotten apples manage to slip through the cracks.

Many people are concerned with the hiring process for nursing home staff such as nurses because they typically think of these employees as having the most direct contact with the residents. These types of individuals are often charged with monitoring meals and seeing that medication is properly administered so they do have a direct impact on the residents well being. However, licensed nurses and administrators are not the only people with access to the residents.

If you took a quick survey of nursing home residents and their families, they would certainly say that it is important to have quality trustworthy staff, but they may not even think about other types of workers. Nearly every job has a screening process, but they may not be as strict as those for doctors and nurses. In this instance, it was a maintenance worker. Maintenance workers such as Moreno oftentimes have nearly full access to a nursing home under the guise of “maintenance” or checking on a complaint. An administrator or nurse might not think twice about passing a uniformed maintenance worker carrying a bag of tools despite the fact that this passing took place in a special needs patient wing of the home. A nursing home employee might even pass by a maintenance worker entering a resident’s room because he or she assumes that the worker is simply doing their job to check on some technical issue.

Each of these situations should be checked. Nursing homes must enact and enforce strict screening processes for the hiring of all types of employees who work in a home; not just the nurses. A maintenance worker might not have access to the residents’ medication, but the job presents opportunities for abuse or stealing nonetheless.

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Levin & Perconti Reach Million Dollar Settlement Following Nursing Home Pressure Sore Development

Bed sores are “the” prototypical nursing home injury caused by neglect. Also called pressure ulcers or decubitus ulcers, these sores pop up on far too many residents after they enter a nursing home. The consequences of the injury are severe, and on many occasions they contribute to an elderly resident’s death. Yet, no matter how well-known the risks and how extensive the prevention options, time and again nursing home caregivers fails to act properly to prevent and treat these sores.

Because of our decades of experience on nursing home neglect cases, we have a team of Chicago pressure sore attorneys who are very familiar with the injury, how it develops, and how it could have been prevented. We are proud to work with many families whose loved ones have suffered serious harm (or died) as a result of caregivers poor actions related to bed sores.

Illinois Pressure Sore Lawsuit
For example, our team recently reached a settlement in a pressure sore case in Illinois. An 88-year old man entered the defendant-facility in late June of 2007. At that time he had a serious pressure that had developed on his sacral area. Obviously because he had the sore at the time of his admission, the facility cannot be faulted for its existence. However, they knew of the pressure sore and so they were obligated to properly treat it so that it did not worsen. In addition, knowing the resident’s risk, they were required to prevent the developed of other bed sores.

Even though that seems like a straightforward caregiving plan, the facility in this case failed. In fact, less than three months later, the man was transported to the hospital because of medical complications. At that time it was discovered that the initial sore had not been handled properly, allowed to grow even larger in size and severe in effect. In fact, the hospitalization itself was caused by the harm from the ulcer. But it didn’t end there. In his short time at the facility the man had also developed three other bed sores, including a severe stage IV ulcer on his left hip. Several of those wounds were ultimately infected, and the treatment needed to deal with the sores was extensive. He had debridements, wound vac therapy, and at-home care after multiple hospitalizations.

Eventually the man’s family reached out to our pressure sore lawyers to investigate the matter. A lawsuit was filed alleging that the facility violated care standards when they failed to properly treat the initial sore and prevent the development of other sores. Last month a settlement order was entered in the case in the amount of $1 million. The settlement ensures the family was able to hold the facility responsible for their poor care and are spared the need to go through a lengthy trial process.

If you suspect that a loved one may have suffered in similar ways, please take a moment to call our office. There is nothing to lose by visiting with an attorney to learn how pressure sores injuries are often a consequences of nursing home neglect.

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The Year of Elder Abuse Prevention

Protecting Senior Pocketbooks

Fiscal Cliff Deal Includes Federal Elder Care Changes

Unless you shut out all newspapers, online articles, and television programs over the last week, you’ve probably heard about the “Cliff Agreement” that was reached by Congress on New Year’s Day. The compromise measure surprisingly passed both chambers with support from members of both parties–though Republicans were more likely to be opposed to the bill.

The majority of focus on the details of the plan relate to taxes. After all, the bill is actually entitled the 2012 American Taxpayer Relief Act (ATRA). That major provisions include elimination of the payroll tax, increases in the capital gains and income tax for high-earning Americans, and changes to the estate tax. There are also alterations to long-term retirement accounts, with 401(k)s converted into Roth IRAs for the purpose of generating more short-term tax revenue for the federal government.

However, taxes were not the only thing at issue in the ATRA. In fact, one issue related to elder care was included as part of the compromise bill. A Forbes story provides some helpful details of the situation. In particular, the bill does two different things which may affect long-term care services, including proper access to quality facilities void of Illinois nursing home abuse and neglect.

First, the cliff agreement repeals the CLASS Act. The Act was created in 2010 and was intended to create a “voluntary long-term care insurance system.” However, the program as written never had much of a chance of survival. That is because the numbers did not add up. Actuaries found that the premiums would be too high for most to join and without changes, the program would not be financially viable. In fact, the Obama Administration, via the Secretary of Health and Human Services Department stopped implementing the program not long after its passage. In other words, the repeal via the ATRA does not come as a huge surprise.

Alternatively, on top of axing the CLASS Act, the cliff agreement created a new federal commission to plan for better financing and delivering of long-term care services. The legislation explains the purpose of the commission thusly: “develop a plan for the establishment, implementation,and financing of a comprehensive, coordinated, and high-quality system that ensures the availability of long-term services and supports for individuals in need of such services and supports… and individuals desiring to plan for future long-term care needs.”

The new commission would be a panel of 15 members appointed by the White House as well as the Congressional leaders from both parties. Those panel members would include a diverse range of interests, from those receiving the care and providing care to front-line care workers and Medicaid administrators.

While the idea of a commission crafting novel policy to actually improve the cost and access to care for seniors is encouraging, we will have to wait and see if any of it results in real change. As virtually everyone knows, there is a big difference between creating a panel to “study” an issue and actually passing legislation that changes things. As it now stands the commission has six months to create a proposal, and Congress can then vote or not vote on any of their recommended changes.

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The Year of Elder Abuse Prevention

Protecting Senior Pocketbooks

Levin & Perconti Settle Nursing Home Lawsuit Against Berkshire Nursing & Rehab

Our attorneys are proud to work with residents in Chicago and throughout Illinois after poor nursing home care leads to injury. In most cases the process is initiated by the family of the resident. Sadly, families often only learn of problematic care after an incident which causes harm–a nursing home fall, the development of pressure sores, an attack by another resident, or similar accident. When that happens the legal system usually allows the family to recover compensation for the harm irrespective of possible state and federal sanctions for any care violations.

When helping families with these matters, the final resolution in our cases is often a settlement. These are agreements between the parties to resolve the matter without the need to have the issue decided by a judge or jury. Settlements are an efficient way to resolve disputes, ensure fairness, and provide incentive to ensure proper care 100% of the time.

New Illinois Nursing Home Settlement
Recently, our Illinois nursing home abuse lawyers settled a case on behalf of a family against the Berkshire Nursing and Rehabilitation Center in Forest Park, Illinois. The case involved a 93-year old man who was admitted to the defendant-facility in October of 2008. As with any admission the staff members analyzed the resident for his unique risks. Because of his vulnerabilities and mobility problems, he was noted for being a high-risk for developing pressure sores. When a resident is a high-risk for these ulcers, it is important that staff members make specific alterations to their care so that the sores do not develop. This involves proper repositioning, nutrition, and other care. In addition, the staff planned to use “pressure relieving” devices to help.

Unfortunately, the resident in this case did not receive care needed to prevent those sores. Among other care lapses, they failed to provide him with a pressure relieving mattresses as needed. All of this led to the development of many different sores. Those ulcers became infected and the resident eventually needed “debridement” surgery. Even with the operation, the man’s condition never fully improved following the infection. In April of 2009, only half a year after first entering the facility, the resident died as a result of the infection.

The man’s family contacting our legal team, and we filed suit on their behalf. After collecting information about what happened, we were able to reach a settlement with the facility for $500,000. The defendant-facility agreed to pay the insurance policy limit.

Don’t Allow Poor Care To Go Without Accountability
It is easy to decide against pursuing a facility for poor care provided by a nursing home. Especially in the grief of losing a loved one, many families are tempted to ignore clear signs that their family member did not receive the care to which they were entitled. However, it is important not to forget that the accountability function serves to encourage changes at the facility which may save another resident down the road.

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Report on Disparities in Nursing Home Sanctions

Attorney Steve Levin Presenting At Evidentiary Seminar

The Year of Elder Abuse Prevention

Senior abuse is so widespread because those affected are often voiceless. One of the consequences of this dynamic is that solving the problem usually requires the action of outsiders. While educating elderly themselves is helpful, doing that alone will not end the problem. All of us need to come together, commit to be vigilant about the safety and well being of seniors in our lives, and speak up when we have suspicions.

Fortunately, there are some great advocacy groups and public entities leading large-scale programs aimed at organizing around this problem and working to end it. For example, the U.S. Administration on Aging (AOA) recently published information on the “Year of Elder Abuse Prevention.” The project includes dissemination of many different resources all seeking to educate community members about the facets of the abuse, the risk factors, prevention tips, and the best ways to report problems once they are identified.

There are many different ways to to help, and we hope you use the start of a new year to learn more about the problem and commit to ending it.

Be Vigilant About Elder Abuse
One of the simplest ways to start is by signing a pledge card–available at the project website–to promise to do something extra to prevent neglect or exploitation of a senior in the coming year. In addition, you should download many of the free resources available on the page to remind yourself of the ways to act and improve seniors. Some of those simple action steps include:

–Increase the frequency of calls or visits to senior loved ones. Obviously the longer the gap between check-ups, the higher the risk that a problem can go undetected.

–Ask group leaders (i.e. faith based communities) to share information with their organization about the dangers of elder abuse. While those of us steeped in this field talk about the problem all the time, many people never hear about it. Lack of awareness is still a problem and the more time spent spreading even basic information about the risk, the better.

–Ensure tellers at your local bank are trained in identifying possible suspicions activities with elderly customers. There has been great success stories in recent years related to bank tellers and others connected to seniors finances identifying possible exploitation and stopping it in its tracks. When these individuals ask a few more questions and try to check that withdrawals and other transactions are legitimate, much work can be done to stop some theft in its tracks.

–It is also helpful to provide support, companionship, and projects for seniors. For example, if a senior loved one has a special skill, ask him or her to share that skill with you or your children. So much abuse and exploitation is caused by isolation, and ensuring that seniors are engaged in our community is one general way to limit the problem. This sort of thing can go hand-in-hand with nursing home trips and other visits. Sharing a cup of coffee, a conversation, and some laughs can go a long way.

We hope everyone is able to do at least one thing this year–big or small–to improve the life of an elderly community members. And if at any time you suspect that a senior was harmed as a result of abuse, neglect, or exploitation, please contact our senior abuse lawyers to see how we can help.

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Report on Disparities in Nursing Home Sanctions

ProPublica recently issued a report which explores an important topic related to holding nursing homes accountable for mistakes and ensuring changes are made to prevent future harm. The story takes a look at federal oversight of nursing homes, particularly the scattered penalties for care lapses. Obviously, accountability and enforcement of rules is a crucial way quality standards are upheld at these homes. If there are no consequences for providing inadequate care, many facility owners and operators will provide sub-par services to maximize their own bottom line. In fact, many already do. But when it is well-known that errors will be costly, the incentive to prevent those errors increases dramatically.

Unfortunately, punishments are often not doled out consistently or evenly, perhaps limiting the deterrent function of public oversight.

Different Punishments
The report explores the disparity in outcomes following the accidents that led to resident deaths at nursing homes in two different states. In the first case a resident was eating a cookie when he began choking. The resident went to the nurse’s station, but efforts to dislodge the airway blockage failed. In the second case, a resident pulled out her own breathing tube. Caregivers were not able to catch the problem in time.

Following both of the incidents leading to death government investigations were conducted. In each, the investigators found problems with the care provided during the incident. In the first case the employees did not immediately call 911. In addition, they had not been properly trained to respond to emergencies of that nature–a lapse which may have cost the resident his life. In the second incident, the resident in question had removed her tube twice in the prior month. Investigators determined that the caregivers should have done more to prevent the accident, knowing about the risks. The final reports in each case resulted in essentially the same violations representing “immediate jeopardy” of leading to resident harm.

So what were the punishments for the care lapses?

In the case involving the choking death the nursing home was fined $9,500. In the second case, the facility was hit with over a $350,000 fine. Each fine was based largely on the recommendations of state officials who were also involved in the matter.

The report refers to this reality as the “balkanized” system of nursing home punishments following care lapses and citations. Even though federal money is involved, each state essentially determines its own punishments, resulting in significant disparities. Some locations demand more sizeable sanctions for the most serious problems, while other states are far less demanding. It turns out that while CMS officials have to approve final sanction amounts, they almost always rubber-stamp the state suggestion.

Many argue that the failure to standardize these violations allows the poorest facilities to go by without improvement. A nursing academic interviewed for the story explains, “If you don’t go after these really bad violations and try to force these nursing homes to improve quality, they’re going to continue to cause harm and jeopardy.”

This is just one of many reasons why it is always important for individual family members to come forward after their loved ones have been harmed and perhaps file a lawsuit to ensure full accountability is had to prevent future problems.

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Responding to the Stale “Judicial Hellhole” Report

Any political battle is also a public affairs fight. In an ideal world both sides of any issue would provide fair, accurate, and honest information about their position, respond fairly to valid points made by the other side, and concede when those opposing arguments are stronger. Unfortunately, we do not live in that world. Instead, misinformation, distractions, and “gotcha” one-liners dominate the landscape. That means that many community members are drastically misinformed about the real facts about any situation.

The sad reality is that this dynamic means that dangerous and downright harmful legislation is passed. Many of these bills take away rights and harm communities as a whole–only benefitting certain powerful interests. The ability of lobbying arms for those interests to convince community members otherwise is the key factor that allows this bad legislation to become law.

Disinformation Campaign
For evidence of this we need to look no further than the actions of those pushing for “tort reform” laws. One of the most headline-grabbing (but least informative) example of this is the “Judicial Hellhole” report filed annually by the American for Tort Reform Association. To be sure, the “report” is nothing more than a stale attempt to garner headlines and present the image of a problem without much logical evidence.

The President of the Illinois Trial Lawyers Association recently issued a response to the report. He noted how the report “employ[s] junk research to stoke public fear and foster misperception about how the legal system works.” The legal system is undeniably complex, and it is shameful that tort reform groups seek to capitalize on that complexity by misleading community members about the system in an attempt to take away their access to that very system.

The truth is that this and other “tort reform” groups are primarily funded by a few very large corporations. These big businesses are pushing for tort reform laws for one simple reason: to maximize their bottom line by not having to pay for the consequences of their errors.

In their disinformation campaign these big companies claim that they just want to weed out “frivolous” lawsuits, usually smearing attorneys in the process. Of course they never explain the many different procedural rules that already exist to ensure the few claims without merit do not advance far in the justice system. The ITLA President explains the truth:

“What they fear are meritorious lawsuits: actions brought by citizens against corporations producing unsafe products, polluting air and water, swindling their employees, or otherwise acting irresponsibly.”

Fighting Back
Finally ending the cycle of disinformation and passage of laws that harms consumers will not be easy. There remains widespread confusion about how the civil justice system works and the consequences of making changes to the current structure. With skewed reports like this one continually making the rounds, community members are understandably unsure about what is true and what isn’t. Our best bet is to repeatedly share accurate information and pressure policymakers to make decision based on facts and fairness and not the talking points of biased corporations.

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Quality of Life

One of the rights addressed in the Nursing Home Residents’ Bill of Rights relates to the Quality of Life in the nursing home. An individual’s quality of life should not be diminished because he or she resides in a nursing home. Now, an individual’s opportunities to engage in all of the typical social activities in the community might decline because of health related issues, but the individual must still be permitted to engage in activities within the nursing home and community that he or she is medically and financially able to engage in.xmasinnursinghome.jpg

There are a couple of specific clauses addressing the quality of life in nursing home:

A resident must be allowed to choose and participate in activities that he or she likes provided that the activities are part of his or her plan of care. (HSC 1599.1(d): 42CFR 483.15(b)(1). Clearly the nursing home medical staff will have a say in which activities a resident participates in especially if the activities involve physical activity. The nursing home has a duty to care for the residents and ensure their safety so there is some limitation on activities. However, residents cannot be forced to engage in activities that they do not wish to engage in.

Residents have the right to participate in social, religious, and community activities. (22CCR§72527(a)(14): 42CFR 483.10(b)(2)(d). This one again is subject to any medical limitations that might affect a resident. This one is also read in conjunction with the first clause. Residents can choose whether or not to engage in social, community or religious activities and if they do choose to engage in one or all of these types of activities then the resident chooses which specific activities to take part in. The nursing home does not tell them what they must like or dislike.

Residents can register and vote in local, state and national elections. (22CCR§72527(a)(7): 42CFR 483.10(a)(1). This clause is pretty self explanatory. Get out the vote!

Residents must be able to voice any complaints or grievances without fear of retaliation. The nursing home must also give residents instructions on how to file a complaint with the facility and the Department of Health and Services’ Licensing and Certification Office. (22CCR§72527(a)(7): HSC 1599.2(c); 42 CFR 483.10(b)(7)(iv); 42CFR 483.10(f)(1). This clause is especially important for residents. If issues or incidents go unreported because of fear of retaliation, nursing home abuse and neglect will only get worse and lead to additional instances of injury or possibly death. Residents must be aware of the process to file a complaint and must not be deterred from doing so. A complaint might be something simple that leads to a small but meaningful improvement for the residents or it might uncover a more serious and widespread problem within the home. Both complaints she be handled appropriately.

And finally residents must be able to organize and participate in resident groups. Families of residents must also be permitted to organize and participate in such activities. (22 CCR §72527(a)(13),(14); 42CFR 483.15(c)(1). This clause, again, works in conjunction with the first two clauses regarding the right to participate and participate in activities that a resident likes. Participating in resident groups helps to fill in the gaps left by social activities engaged in before moving to a nursing home. It is very important that residents try to stay engaged with fellow residents to maintain a high quality of life.

It is important that residents are allowed to do everything (within reason both medically and logically) to ensure that their quality of life does not suffer while living in a nursing home. Nursing homes should be places of comfort and care for residents; not cold and lifeless institutions.

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[Image courtesy of Geograph]

Know Your Rights: Money

A resident of a nursing home is no different than any other citizen in the United States when it comes to his or her rights and protections. Living in a nursing facility does not mean you give up your rights despite the new and oftentimes more controlled environment, as opposed to living independently. Each nursing home must inform residents of their rights and provide a written description of those legal rights. They must do so in a manner or language that the resident comprehends. Residents must be given the written description of their rights prior to admission and must acknowledge in writing that they received them.

Money is a topic addressed in a patient’s rights. According to the Federal Government, residents have the right to manage their own money or to choose someone to do if for them.

This is straightforward, but as with anything that involves money it can get complicated. Residents can deposit funds with the nursing home and ask that the nursing home hold the funds for them. Before doing so, the resident must sign a written statement authorizing the nursing home to hold the funds. A resident may also ask that the nursing home manage and account for personal funds, but the written authorization is again needed here. The nursing home must give the resident access to any bank accounts or funds that it is holding for the resident. Residents may take advantage of this service, but they are not required to deposit personal funds with the nursing home.

If a resident intends to deposit money into an account with the nursing home, any money over $50 must be deposited into a separate account from the nursing home’s account. This account may accrue interest as a regular account would and the nursing home must have a system in place that will ensure full and accurate accounting of the resident’s funds. Commingling one resident’s money with another resident’s money or the nursing home’s funds is strictly prohibited.

The nursing home must have an accounting system in place to handle both the residents’ finances and the facilities. The nursing home may combine accounts as long as it is able to account for each resident’s money separately and provide financial statements to the residents or their legal representatives.

In the event that a resident with a fund with the nursing home dies, the facility must return the funds to the person or legal entity handling the deceased person’s estate. The facility must do so along with an accurate accounting of the fund within 30 days of the person’s death.

Money makes people do crazy things. There are countless examples of individuals in all professions getting into trouble for mishandling or commingling client or business funds with personal funds. With a nursing home, there might be a large number of residents who all deposit money into some type of account managed by the home. All of the sudden, there is a lot of money floating around in these accounts. The situation is ripe for fraud or outright robbery. Instances of nursing home physical abuse or neglect are well publicized and rightfully so, but defrauding residents out of their money is just as damaging to the person. This is why it is crucial to check every financial statement for accuracy. Residents or their representatives do not need to let a single statement period go by without checking the balance on the account.

It is important for loved ones or family members of a nursing home resident to provide help where needed to keep track of all finances handled by the nursing home.

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[Image courtesy of pixabay]

Senior Scams- Warning Signs & Action Steps

Earlier this week we shared information on a new senior financial exploitation guide that provides helpful information to both identify possible senior financial abuse and tips to act on suspicions. You can download a copy of the brochure here.

The informational piece includes some worthwhile advice not only about preventing abuse but identifying what to do if you suspect mistreatment.

What If You Find a Problem?
The first step is contacting local law enforcement officers. Never forget, financial abuse is an actual crime. All of us are affected when others are violated in their resources–and it is critical that those who violate the law in this way face actual sanctions. While there may be a tendency to sweep things under the rug or resolve the matter without going to the authorities, it is important to take a deep breathe and contact others. Nothing is gained from ignoring the issue or allowing the wrongdoer to get away. In fact, by doing so, the individual may decide to act again, harming others. We cannot begin to fix the problem unless those affected stand up and demand accountability.

Besides local police departments, there are other public agencies which exist to help in these situations. States have adult protective services groups and ombudsman entities which exist specifically to help all those in these very situations. Calling out financial abuse is often sensitive, particularly when it involves someone who is a friend or family member. Things are even worse when the senior is in some way dependent on that individual. Fortunately, these outside groups exist to provide the assistance needed so that seniors can hold the wrongdoer accountable while still receiving the care and support they may need to get by on a day-to-day basis.

Of course, ideally we would stop all abuse well before it occurred. The best way to do that is with planning. Some important prevention steps might include:

-Using a money manager. Having an extra pair of eyes on senior finances is the surest way to catch misconduct early and also to deter others from even trying to cause trouble. Professional money managers already exist, who are trained specifically in providing guidance and protection to seniors who may be susceptible to exploitation. Check out to learn more.

-Conduct estate planning. This is good advice for everyone, but particularly seniors. An estate plan includes many different components, from a will and/or trust to alternative decision-making documents like a power of attorney, living will, and health care directive.

-Try to remove yourself from certain situations where fraud can occur. This include putting your name on the Do not Call Registry (, shredding papers with sensitive information, having outside individuals provide counsel with any large financial transactions, and performing background checks on anyone working inside the home.

The nursing home abuse attorneys are are committed to ensuring proper prevention, and, if necessary, accountability whenever seniors are unfairly victimized. That includes many different situations, from the development of pressure sores to outright theft of property. It is wrong in all cases, and the best way to ensure it doesn’t happen again is to demand redress.

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