Kobe et al v. Mann et al
ORDER AND OPINION granting 236 Motion for Summary Judgment; granting 237 Motion for Summary Judgment; granting 238 Motion for Summary Judgment; granting 239 Motion for Summary Judgment; denying 250 Motion for Summary Jud gment; denying as moot 258 Motion to Exclude; denying as moot 289 Motion to be excused from mediation. Mark Sanford is dismissed as a party as he has never been served. The ACD device shall be properly affixed to Kobe's wheelchair no later than 10 days from the date of entry of this order. Signed by Honorable Margaret B Seymour on 9/30/2014.(mdea )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Kobe, Mark, and John,
) C/A No. 3:11-1146
) ORDER AND OPINION
Nikki Haley, et al.,
Plaintiffs Kobe, Mark, and John are persons with severe disabilities who receive Adult Day
Health Care (ADHC) services. Plaintiffs brought the within action on May 11, 2011, as amended
on October 18, 2011, against numerous state officials and other individuals involved in the oversight
and administration of the South Carolina Medicaid system, and, in particular, persons associated
with the South Carolina Department of Health and Human Services (DHHS); the South Carolina
Department of Disabilities and Special Needs (DDSN); and the Babcock Center, a private nonprofit
organization that provides housing, training, and work opportunities for disabled persons. Plaintiffs
allege wide-spread corruption, negligence, and criminal conduct within the DHHS and DDSN
systems. Among other things, Plaintiffs assert:
In October 2003, DHHS reported that the Babcock Center did not have a policy to
define and report serious abuses between clients to external authorities, that they
failed to report these incidents as required by state law and they failed to follow up
on correction plans. DHHS repeated the finding that staffing ratios required by
vulnerable clients were inadequate and that the Babcock Center did not properly
monitor these more vulnerable clients to assure their health and welfare.
On January 18, 2005, Carolina Medical Review (CMR) released its findings of its
investigations of Babcock Center intermediate care facilities for persons with mental
retardation (ICF/MR facilities), reporting that there was no comprehensive set of
policies and procedures for the administration of Babcock Center programs, as
required by the federal Conditions of Participation. CMR reported that Babcock
Center facilities had a vast number of staff with multiple disciplinary actions who
appear to receive excellent employee evaluations. According to Plaintiffs, CMR
concluded that Babcock Center was not meeting the minimal conditions of
participation in the Medicaid program.
In 2008, the Legislative Audit Council reported that more than $9 million allocated
by the General Assembly to provide services for children with autism were unused
or used for different purposes, and that during fiscal years 2005-2006 and 2006-2007,
DDSN spent approximately $1.5 million for grants to private, non-profit
organizations that were not authorized by the General Assembly; and further, that
there existed serious health and safety problems with licensing and failing to conduct
SLED checks on employees in DDSN programs.
Defendants acted in concert to terminate the ADHC services of Plaintiffs in a scheme
to force them to attend DDSN “Work Activity Centers” (WAC’s) for the financial
gain of DDSN and its local Disabilities and Special Needs (DSN ) Boards. DDSN
spent tens of millions of dollars intended and allocated by the General Assembly for
the purpose of providing home and community based services buying WAC’s
As a result of the termination of ADHC services and the failure of Defendants to
provide other appropriate and necessary home and community based waiver services,
Defendants will actually increase the costs to state taxpayers because the associated
increases in hospitalization and institutional services Plaintiffs will require.
In 2009, DDSN was holding, in addition to millions of dollars of unspent federal
stimulus funds, an excess funds account containing $7.8 million which could have
been used to avoid reductions in services. Instead, $2.6 million of these excess funds
were used to purchase more WAC’s. These transfers of public funds included
$800,000 to be paid to the Babcock Center to purchase a WAC, $1 million to the
Horry County DSN Board and $800,000 to the Beaufort County DSN Board for the
purpose of purchasing and/or renovation of WAC’s which would compete with
private providers of ADHC services.
Hundreds of the most vulnerable citizens of the State have been placed at risk of
being forced into sheltered workshops, where they will be paid subminimum wages
and their medical needs will not be met because they have been forced into WAC’s
or else have been left without day program services.
When the costs of the DSN Board WAC’s which were purchased with tax dollars are
considered, the cost of ADHC services is actually less than the cost of WAC services
which DDSN and the individual Defendants are attempting to force medically fragile
waiver participants to receive.
WAC’s warehouse people with disabilities, limiting their opportunities and putting
them in danger of abuse and neglect, while providing financial gain for employers,
i.e., Defendants Johnson, Buscemi, Lacy, Waring, Haley, and Forkner, all of whom
allegedly have benefitted from the exploitation of persons attending WAC’s.
See generally ECF No. 65.
Plaintiffs claim that DDSN attempted to terminate their ADHC services and those of other
disabled persons in the area of Richland and Lexington Counties, South Carolina, in anticipation of
the Babcock Center opening a WAC purchased with funds provided by the Budget and Control
Board without approval by the General Assembly.
Plaintiffs contend DDSN’s reasons for
terminating ADHC services were pretextual and that disqualified ADHC participants were offered
day services at the Babcock Center WAC for the purpose of exploitation.
Plaintiffs allege the following causes of action: Violation of the Americans With Disabilities
Act (Count One); Violation of Section 504 of the Rehabilitation Act (Count Two); Violation of 42
U.S.C. § 1983 (Count Three); Violation of 42 U.S.C. §§ 1983 and 1988 (violation of civil rights)
(Count Four); Violation of 42 U.S.C. § 1985(3) (conspiracy) (Count Five); Violation of the
Supremacy Clause (Count Six); and Violation of RICO (Count Seven). Plaintiff Kobe also asserts
state law claims against the Babcock Center, a private entity that provides services to persons with
disabilities, as follows: Injuries to Kobe Caused by Babcock Center, Judy Johnson and/or Agents and
Employees of The Babcock Center Resulting From Neglect, Deliberate Indifference, Assault and
Battery and Intentional Infliction of Emotional Distress (Count Eight).
The amended complaint contains class action allegations in the body of the complaint. See
Fed. R. Civ. P. 23. However, Plaintiffs sought no class certification and have confirmed to the court
that the within action is brought by Plaintiffs on behalf of themselves, and not on behalf of others
similarly situated. Plaintiffs seek the following relief:
Issue an order of protection prohibiting DDSN and its agents and employees
from retaliating against the Plaintiffs or their families.
Assume jurisdiction over this action and maintain continuing jurisdiction
until the Defendants are in full compliance with every order of this Court.
Issue an injunctive order declaring that Defendants’ policies, practices, acts
and omissions, as set forth above, violate Plaintiff’s [sic] rights under the
ADA and Section 504 of the Rehabilitation Act and the Medicaid Act.
Plaintiffs request an order prohibiting the Defendants from reducing ADHC
services and requiring Defendants to provide such additional services as shall
be medically necessary, as shall be determined by their treating physicians,
so as to allow Plaintiffs and Class Members to live in the most integrated
settings possible in order to prevent regression and to allow them to function
with the most independence possible.
So long as the cost of these services is less than the cost of ICF/MR services,
Plaintiffs and Class Members request that an order requiring Defendants to
provide Medicaid waiver services as shall be determined by the treating
physicians to be necessary absent review and an order from the Court during
Plaintiffs and Class Members request additional services which shall be
determined to be just and appropriate by the Court.
Plaintiffs and Class Members request that this Court disgorge Defendants and
their associated enterprises or organizations of ill gotten gains.
Plaintiff’s [sic] request the relief requested in this complaint and such other
relief as shall be determined by this Court to be just and equitable, including
payment of legal fees and costs of this action.
Plaintiffs and Class Members request actual and punitive damages in such
amount as shall be determined by a jury.
Plaintiff Kobe requests the relief requested in Count Eight of this Complaint.
Plaintiffs and Class Members request such other relief as the Court shall
determine to be just and right.
ECF No. 65 at 70-72.
Defendants Nikki Haley, in her capacity as Governor and Chairman of the South Carolina
Budget and Control Board; Daniel Cooper and Converse Chellis, in their capacities as former
members of the South Carolina Budget and Control Board; and Curtis Loftis and Brian White, in
their capacities as members of the South Carolina Budget and Control Board, were dismissed from
the case on August 10, 2012 on the grounds of Eleventh Amendment and legislative immunity. ECF
No. 135. Plaintiff John withdrew from the case on July 19, 2013. ECF No. 215. Defendants Hugh
Leatherman and Richard Eckstrom, in their capacities as members of the South Carolina Budget and
Control Board, were dismissed from the action on August 12, 2013 on the grounds of Eleventh
Amendment and legislative immunity. ECF No. 217. Thus, remaining in the case are Plaintiffs
Kobe and Mark, as well as Defendants Anthony Keck, in his capacity as the Director of the South
Carolina Department of Health and Human Services; Emma Forkner, in her capacity as the former
Director of the South Carolina Department of Health and Human Services; Beverly Buscemi, in her
capacity as Director of the South Carolina Department of Disabilities and Special Needs; Eugene A.
Laurent, former Interim Director of the South Carolina Department of Disabilities and Special
Needs; Stanley Butkus, former Director of the South Carolina Department of Disabilities and Special
Needs; Richard Huntress, in his capacity as Commissioner of the South Carolina Department of
Disabilities and Special Needs; Kathi Lacy, Thomas P. Waring and Jacob Chorey, in their capacities
as employees of the South Carolina Department of Disabilities and Special Needs; Mary Leitner, in
her capacity as the Director of the Richland Lexington Disabilities and Special Needs Board; the
Babcock Center; Judy Johnson, in her capacity as the Director of the Babcock Center; and other
Unnamed Actors Associated with the Babcock Center.
Former Governor Mark Sanford appears in the caption of Plaintiffs’ amended complaint in
his capacity as prior member of the South Carolina Budget and Control Board. There being no
evidence that Defendant Sanford was served with copies of the summons and complaint, he is
dismissed pursuant to Fed. R. Civ. P. 4(m).
This matter came before the court on September 23, 2014, on the following motions:
Motion for summary judgment filed by Defendants Keck and Forkner on January 6,
2014. ECF No. 236. Plaintiffs filed a response on March 10, 2014, to which a reply
was filed on April 24, 2014.
Motion for summary judgment filed by Defendants Buscemi, Butkus, Chorey,
Huntress, Lacy, Laurent, and Waring on January 6, 2014. ECF No. 237. Plaintiffs
filed a response on March 17, 2014, to which a reply was filed on April 24, 2014.
Motion for summary judgment filed by Defendant Leitner on January 6, 2014. ECF
No. 238. Plaintiffs filed a response on March 17, 2014, to which a reply was filed
on April 24, 2014.
Motion for summary judgment filed by Defendants Babcock Center, Johnson, and
Unnamed Actors on January 6. 2014 ECF No. 239. Plaintiffs filed a response on
March 17, 2014, to which a reply was filed on April 24, 2014.
Motion for summary judgment filed by Plaintiffs on January 22, 2014. ECF No. 250.
Defendants filed responses on March 17, 2014, to which a reply was filed on April
Motion to exclude witnesses and strike exhibits filed by Defendants Forkner and
Keck on March 10, 2014. ECF No. 258. A response was filed on April 24, 2014.
Motion to be excused from mediation filed by all Defendants on July 15, 2014.
Plaintiffs filed a response on July 31, 2014, to which a reply was filed on August 11,
This matter came before the court for a hearing on September 23, 2014. The court has
considered the motions, memoranda, arguments of counsel, and applicable law. The court concludes
that, for the following reasons and to the extent noted, Defendants’ motions for summary judgment
should be granted and Plaintiff’s motion for partial summary judgment denied, except as to (1)
Kobe’s state law claims contained in Count Eight; and (2) Kobe’s request for an augmentative
communications device (ACD) device.
Kobe’s and Mark’s individual claims can be stated succinctly. At the time of filing the
amended complaint, Kobe was 29 years old. Kobe is unable to walk or to speak and has a history
of convulsions. Kobe attends the Hope Bridge Adult Day Care program and receives ADHC
services. In December 2010, the Richland-Lexington Disabilities and Special Needs Board was
directed by DDSN to update eligibility of persons using ADHC services. Kobe was informed by the
Richland-Lexington Disabilities and Special Needs Board that he no longer was eligible for ADHC
services. Kobe appealed the termination of services to DDSN, and Defendant Buscemi determined
on May 11, 2011, that Kobe should continue to receive ADHC services. Despite being successful
at the DDSN level, Kobe appealed the termination of services to DHHS. The issue was resolved by
consent order dated August 9, 2012. See ECF No. 236-2. It is undisputed that there was no lapse in
ADHC services for Kobe during this time.
Kobe also alleges that he requested from DHHS an(ACD) to aid him in communicating. He
states that the ACD he received was not as sophisticated as that prescribed by his treating physician.
An ACD device acceptable to Kobe now has been supplied to him; however, at the time of the
hearing the ACD device had not been installed on his wheelchair so as to be accessible to him. At
the hearing, Defendants’ counsel informed the court that the wheelchair was to be equipped with the
necessary attachment in the near future. Kobe further contends that his wheelchair was damaged
when he was dropped by employees of the Babcock Center while being loaded into a vehicle, and
that it was not replaced promptly by DHHS. At the time of the hearing, Kobe was in possession of
a new wheelchair.
Mark also receives ADHC services. Like Kobe, Mark was notified in 2011 that he no longer
was eligible for ADHC services. Mark appealed the termination to DDSN, which upheld the
termination. However, the issue was resolved in Mark’s favor at the DHHS level by consent order.
See ECF No. 236-2. Mark’s ADHC services did not lapse during this time period.
Mark lives with his sister. Mark contends that in 2010 DDSN reduced the number of respite
hours to which he is entitled. Mark asserts that he is at risk of institutionalization if his sister is not
provided with the support and services that he needs. See generally ECF No. 65, ¶¶ 19-76.
Plaintiffs contend that the court should resolve the following issues:
Have the Defendants violated the reasonable standards provision of 42 U.S.C.
§ 1396a(a)(17) of the Medicaid Act and the South Carolina Administrative
Procedures Act by failing to establish and utilize reasonable, ascertainable,
non-arbitrary standards and procedures to determine eligibility for and the
extent of medical assistance provided to Plaintiffs?
Plaintiffs state that the court should “issue a permanent injunction against Defendants
denying medical services ordered by Plaintiffs’ treating physicians based on binding norms that have
not been promulgated as regulations. Plaintiffs request that the Defendants be required to give the
deference ordered by the United States Supreme Court to the orders of Plaintiffs’ treating physicians.
Plaintiffs request that Defendants be prohibited from denying medically necessary services based on
amendments made by the agencies without promulgation of regulations.” ECF No. 250 at 27.
Have the Defendants violated the “reasonable promptness” requirement of the
Medicaid Act by failing to provide Kobe with the wheelchair and speech
device his physician ordered and by failing to provide residential services in
the least restrictive setting within ninety days of those needs being identified?
Plaintiffs state that Kobe’s physicians have ordered a wheelchair and speech device, but
DHHS has failed to provide this equipment with reasonable promptness. Plaintiffs state that Kobe
is entitled to be placed in an SLP. Plaintiffs request the court “order Defendants to immediately
provide Kobe with (1) a wheelchair to be provided within 30 days without further administrative
delays, (2) speech device ordered by his physician within thirty days and speech services determined
by his physician to be medically necessary, based on the evaluation by his licensed speech and
language pathologist; (3) immediate payment to Ron Kuebler, a provider of speech and language
services, for the evaluation and speech services provided to Kobe; and (4) immediate funding for
placement in a supervised living program operated by United Cerebral Palsy [UCP] with supports
provided as determined to be necessary by his treating physician. Plaintiffs request that until DDSN
and DHHS promulgate regulations, the agencies provide all medically necessary services to the
Plaintiffs within 90 days of receipt of a physician’s order, with the agencies having the burden to
prove that such services or equipment is not medically necessary.” ECF No. 250 at 28.
Have the Defendants violated the integration mandate of the Americans with
Disabilities Act by failing to provide Kobe with a wheelchair, a speech
device, speech therapy services and placement in a supervised apartment with
necessary support services?
Plaintiffs state: “Kobe requests that this Court issue a declaratory order finding that
Defendants have violated the ADA in the operation of their programs and enjoining them from
continuing to violate the ADA. He requests that DHHS be ordered to pay for the wheelchair and
speech device ordered by his physician to be funding by Defendants. He requests continued speech
services to improve his ability to communicate. Kobe requests funding to provide the SLP services
proposed by UCP.” ECF No. 250 at 31
Did Kobe suffer compensable injuries, including the intentional infliction of
emotional distress, resulting from the neglect and the deliberate and
conscious indifference of Judy Johnson and the Babcock Center and the
assault and battery he experienced at the Babcock Center and was he
subjected to intentional infliction of emotional distress?
According to Plaintiffs, “Kobe was subjected to indignities that no human being should have
to suffer. Kobe has provided evidence showing that Judy Johnson and the Babcock Center
intentionally inflicted emotional distress and psychological injury. Johnson and the Babcock Center
intentionally and recklessly subjected Kobe to emotional distress and they were certain or reasonably
certain that such distress would result from their conduct. Their conduct was so extreme and
outrageous as to exceed all po[s]sible bounds of decency and it was atrocious and utterly intolerable
in a civilized society. No man should be expected to endure the psychological and physical injury
Kobe suffered.” ECF No. 250 at 32-33.
It is well settled that federal courts have no authority to “‘give opinions upon moot questions
or abstract propositions, or to declare principles or rules of law which cannot affect the matter in
issue in the case before it.’” Int’l Coal. for Religious Freedom v. Maryland, 3 F. App’x 46, 48-49
(4th Cir. 2001) (quoting Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992)). This
is so even though such case presented a justiciable controversy at an earlier point in time and an
intervening event rendered the controversy moot. Id. (citing Calderon v. Moore, 518 U.S. 149, 150
In this case, Plaintiffs were informed in 2010 that they no longer qualified for ADHC
assistance. However, their ADHC services were never interrupted, and they both prevailed during
the administrative appeals process. Further, it appears that Kobe has received a new wheelchair.
The court finds these claims to be moot.1
The ripeness doctrine aims to “‘prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements over administrative policies.’”
Pasby v. Delia, 709 F.3d 307, 317 (4th Cir. 2013) (quoting Abbott Labs. v. Gardner, 387 U.S. 136,
148 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)). A claim
should be dismissed as unripe if the plaintiff has not yet suffered injury and any future impact
“‘remains wholly speculative.’” Doe v. Virginia Dep’t of State Police, 713 F.3d 745, 758 (4th Cir.
2013) (quoting Gasner v. Bd. of Supervisors, 103 F.3d 351, 361 (4th Cir. 1996)). In determining
ripeness, a court must “‘balance the fitness of the issues for judicial decision with the hardship to the
parties of withholding court consideration. A case is fit for judicial decision when the issues are
purely legal and when the action in controversy is final and not dependent on future uncertainties.’”
Id. (quoting Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006)).
Mark’s contention that the reduction in his respite hours could lead to the loss of care by his
sister is too remote and speculative to be ripe for federal judicial review. See Charter Fed. Sav. Bank
v. Office of Thrift Supervision, 976 F.2d 203, 208-09 (4th Cir. 1992) (“‘[I]n the context of an
administrative case, there must be ‘an administrative decision [that] has been formalized and its
As to Kobe’s remaining contentions, i.e., his desire to be placed in an SLP and his demand for
immediate payment to Ron Kuebler, these claims were not raised until Plaintiffs’ motion for partial
summary judgment and thus are not properly before the court. Kobe may raise these claims in a
separate complaint, should he desire to do so.
effects felt in a concrete way by the challenging parties.’”)(quoting Pac. Gas & Elec. v. Energy Res.
Comm’n, 461 U.S. 190, 200 (1983)). C.
Standing to Invoke Injunctive Relief
To satisfy Article III's case-or-controversy standing requirements, a plaintiff must show (1)
he has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by
a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
180 (4th Cir. 2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The
standing question is whether the plaintiff has “‘alleged such a personal stake in the outcome of the
controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the
court's remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498-99 (1975) (quoting
Baker v. Carr, 369 U.S. 186, 204 (1962)). Further, “when the asserted harm is a ‘generalized
grievance’ shared in substantially equal measure by all or a large class of citizens, that harm alone
normally does not warrant exercise of jurisdiction.” Id. at 499 (citing cases). In addition, “even
when the plaintiff has alleged injury sufficient to meet the ‘case or controversy’ requirement, . . .
the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief
on the legal rights or interests of third parties.” Id. (citing cases). “Without such limitations–closely
related to Art[icle] III concerns but essentially matters of judicial self-governance–the courts would
be called upon to decide abstract questions of wide public significance even though other
governmental institutions may be more competent to address the questions and even though judicial
intervention may be unnecessary to protect individual rights.” Id. at 500 (citing Schlesinger v.
Reservists Comm. to Stop the War, 418 U.S. 209, 222 (1974) (“‘The desire to obtain sweeping relief
cannot be accepted as a substitute for compliance with the general rule that the complainant must
present facts sufficient to show that his individual need requires the remedy for which he asks.’”)
(quoting McCable v. Atchison, T. & S.F.R. Co., 235 U.S. 151, 164 (1914)).
As can readily be discerned from the allegations set forth hereinabove, and further as argued
in the hearing, Plaintiffs allege systemic failures within the DHHS and DDSN systems and ask the
court to intervene in the administration and operation of these agencies of the State of South
Carolina. In particular, Plaintiffs seek to have the court oversee DHHS’s promulgation of
regulations that Plaintiffs contend would force compliance with federal Medicaid law. While
Plaintiffs’ allegations of wholesale mismanagement and, indeed, criminal conduct within DHHS,
DDSN, and the Babcock Center are sobering,”[i]t is an established principle . . . that to entitle a
private individual to invoke the judicial power to determine the validity of executive or legislative
action he must show that he has sustained or is immediately in danger of sustaining a direct injury
as a result of that action.” Lujan, 504 U.S. at 574-76. Plaintiffs show no cognizable particularized
injury. Plaintiffs lack standing to seek injunctive relief on behalf of others regarding the allegations
of mishandling of funds and exploitation set forth in the amended complaint.2
Tort Claims against Defendants Babcock Center, Johnson, and Unnamed Actors (the
In Count Eight, Kobe asserts state law claims for negligence, intentional infliction of
emotional distress, assault and battery regarding events that occurred while he was in custody of
employees of the Babcock Center. The court finds Kobe’s state law claims are sufficiently related
to the same case or controversy as his claims regarding the administration of his Medicaid services
These types of allegations are typically brought in class action lawsuits. See, e.g., Alexander S. v.
Boyd, C/A No. 3:90-3062-17.
such the court may exercise supplemental jurisdiction in accordance with 28 U.S.C. § 1367. The
court concludes that there exist genuine issues of material fact as to the liability of the Babcock
Defendants that require resolution by a jury.
For the reasons stated hereinabove, Defendants’ motions for summary judgment (ECF No.
236, 237, 238, 239) are granted on the grounds of mootness, ripeness, and/or standing. The court
makes no findings regarding the merits of allegations Plaintiffs lack standing to assert. Plaintiffs’
motion for summary judgment (ECF No. 250) is denied except as to Kobe’s allegations contained
in Count Eight, which will be placed on the jury trial roster.
As noted hereinabove, Kobe’s ACD device was not installed on his wheelchair at the time
of the hearing and thus is not accessible to him. The court orders that the ACD device be properly
affixed to Kobe’s wheelchair no later than ten (10) days from the date of entry of this order.
Defendants’ remaining motions excluded witnesses and to strike, and to be excused from
mediation (ECF Nos. 258, 289) are denied as moot.
IT IS SO ORDERED.
/s/ Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
September 30, 2014
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