S 519 Session 109 (1991-1992)
S 0519 General Bill, By Saleeby, Land, McConnell, M.F. Mullinax and T.H. Pope
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
38-71-325 so as to provide for additional requirements for the approval of
individual major medical expense coverage policies.
01/22/91 Senate Introduced and read first time SJ-6
01/22/91 Senate Referred to Committee on Banking and Insurance
04/10/91 Senate Committee report: Majority favorable with amend.,
minority unfavorable Banking and Insurance SJ-16
Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
April 10, 1991
S. 519
Introduced by SENATORS Saleeby, Land, McConnell, Mullinax and
Pope
S. Printed 4/10/91--S.
Read the first time January 22, 1991.
THE COMMITTEE ON BANKING AND
INSURANCE
To whom was referred a Bill (S. 519), to amend the Code of Laws of
South Carolina, 1976, by adding Section 38-71-325, etc., respectfully
REPORT:
That they have duly and carefully considered the same, and
recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting
words and inserting therein:
/ SECTION 1. Subarticle 1, Article 3, Chapter 71, Title 38 of the
1976 Code is amended by adding:
"Section 38-71-325. On the effective date of this section, in
addition to any other requirements of law, no new individual major
medical expense coverage policy, as defined in regulations promulgated
by the Commissioner, may be approved unless:
(1) Premium rates, after appropriate allowance for the actuarial value
of the difference in benefits, for any such policy form first approved for
use by the insurer in South Carolina within the two-year period
immediately prior to the effective date of this section and any such
policy form first approved for use after the effective date of this section
do not exceed the premium rates for any other such policy form first
approved for use during this period by more than thirty percent;
(2) The actuarial value of the difference in benefits set out in such
policy forms of the insurer, as specified in an opinion by a qualified
actuary or other qualified person acceptable to the Commissioner, is
reported not less often than once a year to the Commissioner and used
in demonstrating compliance with item (1) above.
(3) The anticipated (target) loss ratio for the combined experience
for all such policy forms specified in item (1) must be equivalent to or
greater than the most recent loss ratios detailed within the National
Association of Insurance Commissioner's `Guidelines for Filing of Rates
for Individual Health Insurance Forms' or successor publications. The
anticipated (target) loss ratio for the combined experience is defined as
the average anticipated (target) loss ratio for all such policy forms
included in the combined experience weighted by premium volume.
With respect to any such policy form, the insurer shall have the right
to file a loss ratio guarantee in accordance with the procedures specified
in Section 38-71-310(E) or to request approval of any rate change before
the use thereof, but the anticipated loss ratios of each policy form
whether or not a loss ratio guarantee has been filed shall be combined as
provided in the preceding item (3).
The initial policy form proposed to be used by a domestic insurer
after its organization under the laws of this State and the initial policy
form proposed to be used by a foreign insurer after authorization by the
Commissioner to do business in this State may be disapproved by the
Commissioner if he determines that the rates proposed to be used with
the policy form are set at a level substantially less than rates charged by
other insurers in this State offering comparable coverage.
Nothing contained in this section may be construed to prevent the use
of age, sex, area, industry, occupational, and avocational factors or to
prevent the use of different rates for smokers and nonsmokers or for any
other habit or habits of an insured person which have a statistically
proven effect on the health of the person and are approved by the
Commissioner. Also, nothing contained in this section shall preclude
the establishment of a substandard classification based upon the health
condition of the insured, but the initial classification may not be changed
adversely to the applicant after initial issue.
The Commissioner has the right, upon application by any insurer, to
grant relief, for good cause shown, from any requirement of this
section."
SECTION 2. Subarticle 5, Article 3, Chapter 71, Title 38 is amended
by adding:
"Section 38-71-650. Any person purchasing an individual
accident, health, or accident and health insurance policy after July 1,
1991, shall have the right to transfer to any individual policy of equal or
lesser benefits offered for sale by the insurer at the time the transfer is
sought. Any special provision excluding coverage for a specified
condition may remain after transfer, and any waiting period or
preexisting condition period specified in the policy to which the transfer
is made may be required to be served after the transfer."
SECTION 3. Sections 38-71-710 through 38-71-810 are designated
as Subarticle 1, General Provisions, Article 5.
SECTION 4. Article 5, Chapter 71, Title 38 of the 1976 Code is
amended by adding:
"Subarticle 3
Small Group Health Insurance
Section 38-71-910. The intent of this subarticle is to promote the
availability of health insurance coverage to small employers, to prevent
abusive rating practices, to require disclosure of rating practices to
purchasers, to establish rules for continuity of coverage for employers
and covered individuals, and to improve the efficiency and fairness of
the small group health insurance marketplace.
Section 38-71-920. As used in this subarticle:
( 1) "Small employer" means any person, firm,
corporation, partnership, or association actively engaged in business
who, on at least fifty percent of its working days during the preceding
year, employed no more than twenty-five eligible employees. In
determining the number of eligible employees, companies which are
affiliated companies or which are eligible to file a combined tax return
for purposes of state taxation must be considered one employer.
( 2) "Insurer" means any person who provides health
insurance in this State. For the purposes of this subarticle, insurer
includes a licensed insurance company, a prepaid hospital or medical
service plan, a health maintenance organization, a multiple employer
welfare arrangement, or any other person providing a plan of health
insurance subject to state insurance regulation.
( 3) "Health insurance plan" or "plan"
means any hospital or medical expense incurred policy or certificate,
hospital, or medical service plan contract, or health maintenance
organization subscriber contract. Health insurance plan does not
include accident-only, credit, dental, or disability-income insurance;
coverage issued as a supplement to liability insurance; worker's
compensation or similar insurance; or automobile medical-payment
insurance.
( 4) "Small employer insurer" means an insurer which
offers health insurance plans covering the employees of a small
employer.
( 5) "Case characteristics" means demographic or
other relevant characteristics of a small employer, as determined by a
small employer insurer, which are considered by the insurer in the
determination of premium rates for the small employer. Claim
experience, health status, and duration of coverage since issue are not
case characteristics for the purposes of this subarticle.
( 6) "Commissioner" means the Chief Insurance
Commissioner.
( 7) "Department" means the Department of Insurance.
( 8) "Base premium rate" means, for each class of
business as to a rating period, the lowest premium rate charged or which
could have been charged under a rating system for that class of business,
by the small employer insurer to small employers with similar case
characteristics for health insurance plans with the same or similar
coverage.
( 9) "New business premium rate" means, for each
class of business as to a rating period, the premium rate charged or
offered by the small employer insurer to small employers with similar
case characteristics for newly issued health insurance plans with the
same or similar coverage.
(10) "Index rate" means for each class of business for
small employers with similar case characteristics the arithmetic average
of the applicable base premium rate and the corresponding highest
premium rate.
(11) "Class of business" means all or a distinct
grouping of small employers as shown on the records of the small
employer insurer.
(a) A distinct grouping may be established only by the small
employer insurer on the basis that the applicable health insurance plans:
( i) are marketed and sold through individuals and
organizations which are not participating in the marketing or sale of
other distinct groupings of small employers for such small employer
insurer;
( ii) have been acquired from another small employer
insurer as a distinct grouping of plans;
(iii) are provided through an association with membership
of not less than fifty small employers which have been formed for
purposes other than obtaining insurance; or
( iv) are in a class of business that meets the requirements
for exception to the restrictions related to premium rates provided in
Section 4(A)(1)(a).
(b) A small employer insurer may establish no more than two
additional groupings under each of the subparagraphs in subitem (a) on
the basis of underwriting criteria which are expected to produce
substantial variation in the health care costs.
(c) The commissioner may approve the establishment of
additional distinct groupings upon application to the commissioner and
a finding by the commissioner that that action would enhance the
efficiency and fairness of the small employer insurance marketplace.
(12) "Actuarial certification" means a written statement
by a member of the American Academy of Actuaries or other individual
acceptable to the Commissioner that a small employer insurer is in
compliance with the provisions of Section 38-71-940, based upon the
person's examination, including a review of the appropriate records and
of the actuarial assumptions and methods utilized by the insurer in
establishing premium rates for applicable health insurance plans.
(13) "Rating period" means the calendar period for
which premium rates established by a small employer insurer are
assumed to be in effect, as determined by the small employer insurer.
Section 38-71-930. (A) Except as provided in subsection (B), the
provisions of this subarticle apply to any health insurance plan which
provides coverage to one or more employees of a small employer.
(B) The provisions of this subarticle do not apply to individual
health insurance policies which are subject to policy form and premium
rate approval as may be provided in Title 38 of the 1976 Code.
Section 38-71-940. (A) Premium rates for health insurance plans
subject to this subarticle are subject to:
(1) The index rate for a rating period for any class of business
may not exceed the index rate for any other class of business by more
than twenty percent.
The provisions of this item do not apply to a class of business if all
of the following apply:
(a) the class of business is one for which the insurer does not
reject, and never has rejected, small employers included within the
definition of employers eligible for the class of business or otherwise
eligible employees and dependents who enroll on a timely basis, based
upon their claim experience or health status.
(b) The insurer does not transfer involuntarily, and never
has involuntarily transferred, a health insurance plan into or out of the
class of business.
(c) The class of business is currently available for purchase.
(2) For a class of business, the premium rates charged during
a rating period to small employers with similar case characteristics for
the same or similar coverage, or the rates which could be charged to
these employers under the rating system for that class of business, may
not vary from the index rate by more than twenty-five percent of the
index rate.
(3) The percentage increase in the premium rate charged to a
small employer for a new rating period may not exceed the sum of the
following:
(a) The percentage change in the new business premium rate
measured from the first day of the prior rating period to the first day of
the new rating period. In the case of a class of business for which the
small employer insurer is not issuing new policies, the insurer shall use
the percentage change in the base premium rate.
(b) An adjustment, not to exceed fifteen percent annually
and adjusted pro rata for rating periods of less than one year, due to the
claim experience, health status, or duration of coverage of the employees
or dependents of the small employer as determined from the insurer's
rate manual for the class of business.
(c) Any adjustment due to change in coverage or change in the
case characteristics of the small employer as determined from the
insurer's rate manual for the class of business.
(4) In the case of health insurance plans issued prior to the
effective date of this subarticle, a premium rate for a rating period may
exceed the ranges described in subsection (A)(1) or (2) for five years
following the effective date of this subarticle. In that case, the
percentage increase in the premium rate charged to a small employer in
such a class of business for a new rating period may not exceed the sum
of the following:
(a) The percentage change in the new business premium rate
measured from the first day of the prior rating period to the first day of
the new rating period. In the case of a class of business for which the
small employer insurer is not issuing new policies, the insurer shall use
the percentage change in the base premium rate.
(b) Any adjustment due to change in coverage or change
in the case characteristics of the small employer as determined from the
insurer's rate manual for the class of business.
(B) Nothing in this section is intended to affect the use by a small
employer insurer of legitimate rating factors other than claim experience,
health status, or duration of coverage in the determination of premium
rates. Small employer insurers shall apply rating factors, including case
characteristics, consistently with respect to all small employers in a class
of business.
(C) A small employer insurer may not transfer involuntarily a
small employer into or out of a class of business. A small employer
insurer may not offer to transfer involuntarily a small employer into or
out of a class of business, unless the offer is made to transfer all small
employers in the class of business without regard to case characteristics,
claim experience, health status, or duration since issue.
Section 38-71-950. (A) Except as provided in subsection (B),
a health insurance plan subject to this subarticle is renewable to all
eligible employees and dependents at the option of the small employer,
except for:
(1) nonpayment of required premiums;
(2) fraud or material misrepresentation of the small employer,
or, with respect to coverage of an insured individual, fraud, or material
misrepresentation by the insured individual or the individual's
representative. If the fraud or material misrepresentation is made by a
person with respect to any person's prior health condition, the insurer
shall have the right also to deny coverage to that person or to impose as
a condition of continued coverage the exclusion of the condition
misrepresented.
(3) noncompliance with plan provisions;
(4) the number of individuals covered under the plan is less
than the number or percentage of eligible individuals required by
percentage requirements under the plan; or
(5) the small employer is no longer actively engaged in the
business in which it was engaged on the effective date of the plan.
(B) A small employer insurer may cease to renew all plans under
a form within a class of business or may cease to renew all plans under
a class of business. In either case the insurer shall provide notice to all
affected health insurance plans and to the commissioner in each state in
which an affected insured individual is known to reside at least ninety
days before termination of coverage. An insurer which exercises its
right to cease to renew all plans under a form within a class of business
may not transfer or otherwise provide coverage to any of the employers
from the nonrenewed form or class of business unless the insurer offers
to transfer or provide coverage to all affected employers and eligible
employees and dependents without regard to case characteristics, claim
experience, health status, or duration of coverage. In addition, any
insurer which exercises its right to cease to renew all plans within a class
of business may not establish a new class of business for a period of five
years after the nonrenewal of the plans without prior approval of the
commissioner.
Section 38-71-960. Each small employer insurer shall make
reasonable disclosure in solicitation and sales materials provided to
small employers of the following:
(1) the extent to which premium rates for a specific small
employer are established or adjusted due to the claim experience, health
status, or duration of coverage of the employees or dependents of the
small employer;
(2) the provisions concerning the insurer's right to change
premium rates and the factors, including case characteristics, which
affect changes in premium rates;
(3) a description of the class of business in which the small
employer is or will be included, including the applicable grouping of
plans;
(4) the provisions relating to renewability of coverage.
Section 38-71-970. (A) A small employer insurer shall maintain
at its principal place of business a complete and detailed description of
its rating practices and renewal underwriting practices, including
information and documentation which demonstrate that its rating
methods and practices are based upon commonly accepted actuarial
assumptions and are in accordance with sound actuarial principles.
(B) Each small employer insurer shall file each March first with
the commissioner an actuarial certification certifying that the insurer is
in compliance with this section and that the rating methods of the insurer
are actuarially sound. A copy of the certification must be retained by the
insurer at its principal place of business.
(C) A small employer insurer shall make the information and
documentation described in subsection (A) available to the
commissioner upon request. The information must be considered
proprietary and trade secret information and is not subject to disclosure
by the commissioner to persons outside of the department except as
agreed to by the insurer or as ordered by a court of competent
jurisdiction.
Section 38-71-980. The commissioner may suspend all or any part
of Section 38-71-940 as to the premium rates applicable to one or more
small employers for one or more rating periods upon a filing by the
small employer insurer and a finding by the commissioner that either the
suspension is reasonable in light of the financial condition of the insurer
or that the suspension would enhance the efficiency and fairness of the
marketplace for small employer health insurance.
Section 38-71-990. The provisions of this subarticle apply to each
health insurance plan for a small employer that is delivered, issued for
delivery, renewed, or continued in this State after the effective date of
this subarticle. For purposes of this section, the date a plan is continued
is the first rating period which commences after the effective date of this
subarticle."
SECTION 5. Section 38-71-760(m) of the 1976 Code is amended to
read:
"(m) This subsection applies to all groups. with
thirteen or more enrolled employees. It also applies to all groups with
less than thirteen employees unless a prominent notice which has been
filed with and approved by the Commissioner as to form is given to and
signed by the policyholder which serves to warn the policyholder that
this subsection does not apply.
(1) Each person who is eligible for coverage in accordance
with the succeeding carrier's plan of benefits with respect to classes
eligible and activity at work and nonconfinement rules must be covered
by that carrier's plan of benefits.
(2) Each person not covered under the succeeding carrier's plan
of benefits in accordance with item (1) of this subsection (m)
nevertheless must be covered by the succeeding carrier in accordance
with the following rules if the individual was validly covered, including
benefit extension, under the prior plan on the date of discontinuance and
if the individual is a member of the class of individuals eligible for
coverage under the succeeding carrier's plan. Any reference in the
following rules to an individual who was or was not totally disabled is
a reference to the individual's status immediately prior to the date the
succeeding carrier's coverage becomes effective.
(A) The minimum level of benefits to be provided by the
succeeding carrier must be the applicable level of benefits of the
succeeding carrier's plan reduced by any benefits payable by the prior
plan.
(B) Coverage must be provided by the succeeding carrier until
at least the earliest of the following dates:
(i) The date the individual becomes eligible under the
succeeding carrier's plan as described in item (1) of this subsection (m).
(ii) For each type of coverage, the date the individual's
coverage would terminate in accordance with the succeeding carrier's
plan provisions applicable to individual termination of coverage, such
as at termination of employment or ceasing to be an eligible dependent,
as the case may be.
(iii) In the case of an individual who was totally disabled,
and in the case of a type of coverage for which subsections (f) through
(j) of this section require an extension of accrued liability, the end of any
period of extension or accrued liability which is required of the prior
carrier by those subsections or, if the prior carrier's policy or contract is
not subject to those subsections, would have been required of that carrier
had its policy or contract been subject to those subsections at the time
the prior plan was discontinued and replaced by the succeeding carrier's
plan.
(3) In the case of a preexisting conditions limitation included in
the succeeding carrier's plan, the level of benefits applicable to
preexisting conditions of persons becoming covered by the succeeding
carrier's plan in accordance with this subsection (m) during the period
of time this limitation applies under the new plan must be the lesser of:
(A) The benefits of the new plan determined without
application of the preexisting conditions limitation; and
(B) The benefits of the prior plan.
(4) The succeeding carrier, in applying any deductibles or waiting
periods in its plan, shall give credit for the satisfaction or partial
satisfaction of the same or similar provisions under a prior plan
providing similar benefits. In the case of deductible provisions, the
credit must apply for the same or overlapping benefit periods and must
be given for expenses actually incurred and applied against the
deductible provisions of the prior carrier's plan during the ninety days
preceding the effective date of the succeeding carrier's plan but only to
the extent these expenses are recognized under the terms of the
succeeding carrier's plan and are subject to similar deductible provisions.
(5) In any situation where a determination of the prior carrier's
benefit is required by the succeeding carrier, at the succeeding carrier's
request the prior carrier shall furnish a statement of the benefits available
or pertinent information sufficient to permit verification of the benefit
determination or the determination itself by the succeeding carrier. For
the purposes of this section, benefits of the prior plan are determined in
accordance with all of the definitions, conditions, and covered expense
provisions of the prior plan rather than those of the succeeding plan.
The benefit determination must be made as if coverage had not been
replaced by the succeeding carrier."
SECTION 6. Section 38-71-730(3) of the 1976 Code is amended to
read:
"(3) For groups of twenty-five or more persons no evidence
of individual insurability may be required at the time the person first
becomes eligible for insurance or within thirty-one days thereafter
except for any insurance supplemental to the basic coverage for which
evidence of individual insurability may be required. With respect to
trusteed groups the phrase 'groups of twenty-five' must be applied on a
participating unit basis for the purpose of requiring individual evidence
of insurability. Except as hereinafter provided, for all groups, no
evidence of individual insurability may be required at the time the
person first becomes eligible for insurance or within thirty-one days
thereafter. Nothing in this section precludes the obtaining of medical
information with respect to the members of the group for use in
determining the insurability of the group, but the information may not
be used to exclude an individual from coverage. Provided however, that
for groups of ten or less persons, evidence of individual insurability may
be required for persons first becoming eligible for insurance after the
effective date of the policy. An insurer may exclude such persons from
coverage or may impose such condition riders, preexisting condition
limitations or waiting periods as are in accordance with law."
SECTION 7. Section 38-71-730(4) of the 1976 Code is amended to
read:
"(4) The policies may contain a provision limiting coverage for
preexisting conditions. The preexisting conditions must be covered no
later than twelve months without medical care, treatment, or supplies
ending after the effective date of the coverage or twelve months after the
effective date of the coverage, whichever occurs first. Preexisting
conditions are defined as `those conditions for which medical advice or
treatment was received or recommended no more than twelve months
prior to before the effective date of a person's coverage.'
However, whenever a covered person moves from one insured group
to another, and is neither excluded from coverage nor subject to the
imposition of preexisting condition limitations as permitted by Section
38-71-730(3), the insurer of the group to which the covered person
moves shall give credit for the satisfaction of the preexisting condition
period or portion thereof already served under the prior plan if the
coverage is selected when the person first becomes eligible and the
coverage is continuous. Service under a probationary period required by
the employer is not considered to interrupt continuous
service."
SECTION 8. Section 38-71-760(k) of the 1976 Code is amended to
read:
"(k) The carrier responsible for liability in those instances
in which one carrier's contract replaces a plan of similar benefits of
another must be indicated. A replacement carrier is considered to
be a succeeding carrier within the meaning of this section if the effective
date of the coverage provided by it is sixty-two days or less after the
date of termination of coverage of the prior carrier."
The first paragraph of Section 38-71-770 of the 1976 Code, as last
amended by Act 127 of 1989, is further amended to read:
"A group policy issued for delivery or renewed in this State
which provides hospital, surgical, or major medical expense insurance,
or any combination of these coverages, on an expense incurred basis
must provide that an employee or member who has been
continuously insured continuously under the group
policy for at least six months whose insurance under the group policy
has been terminated for any reason other than nonpayment of the
required contribution is entitled to continue coverage under the group
policy for the fractional policy month remaining at termination plus six
additional policy months. A group policy is considered to be a
successor policy within the meaning of this section if the effective date
of the coverage provided by it is sixty-two days or less after the date of
termination of coverage of the prior carrier. The employee or
member is not entitled to have his coverage continued if the employee
or member was entitled under federal law to continuation of his
coverage for a period of greater duration than provided herein
by this section. Continuation of coverage is subject to the group
policy or a successor policy remaining in force and the employee paying
the entire group premium, including any portion usually paid by the
former employer, before the date each month that the group policy
month begins. Policies which provide benefits for other than hospital,
surgical, major medical, or which provide benefits for specific diseases
or the accidental injuries only are not affected by this section."
SECTION 9. The provisions of SECTION 1, SECTION 2 and
SECTION 4 of this Act take effect January 1, 1992. The remaining
provisions of this Act take effect upon approval of the Governor./
Amend title to conform.
Majority favorable. Minority unfavorable.
JOHN A. MARTIN HERBERT U. FIELDING
For Majority. THEO W. MITCHELL
For Minority.
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING SECTION 38-71-325 SO AS TO PROVIDE FOR
ADDITIONAL REQUIREMENTS FOR THE APPROVAL OF
INDIVIDUAL MAJOR MEDICAL EXPENSE COVERAGE
POLICIES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 38-71-325. On the effective date of this section, in
addition to any other requirements of law, no new individual major
medical expense coverage policy, as defined in regulations promulgated
by the Commissioner, may be approved unless:
(1) Premium rates, after appropriate allowance for the actuarial value
of the difference in benefits, for any such policy form first issued and
used by the insurer in South Carolina within the two-year period
immediately prior to the effective date of this section and any such
policy form first issued after the effective date of this section do not
exceed the premium rates for any other such policy form first issued
during this period by more than thirty percent;
(2) The actuarial value of the difference in benefits set out in such
policy forms of the insurer, as specified in an opinion by a qualified
actuary or other qualified person acceptable to the Commissioner, is
reported not less often than once a year to the Commissioner and used
in demonstrating compliance with item (1) above; and
(3) The insurer files a loss ratio guarantee in accordance with the
procedures specified in Section 38-71-310(E) with those changes as may
be necessary. The loss ratio for the combined experience for all such
policy forms specified in item (1) must be equivalent to or greater than
the most recent loss ratios detailed within the National Association of
Insurance Commissioner's `Guidelines for Filing of Rates for Individual
Health Insurance Forms' or successor publications. The anticipated
(target) loss ratio for the combined experience is defined as the average
anticipated (target) loss ratio for all such policy forms included in the
combined experience weighted by premium volume.
The initial policy form proposed to be used by a domestic insurer
after its organization under the laws of this State and the initial policy
form proposed to be used by a foreign insurer after authorization by the
Commissioner to do business in this State may be disapproved by the
Commissioner if he determines that the rates proposed to be used with
the policy form are set at a level substantially less than rates charged by
other insurers in this State offering comparable coverage.
Nothing contained in this section may be construed to prevent the use
of age, sex, area, industry, occupational, and avocational factors or to
prevent the use of different rates for smokers and nonsmokers or for any
other habit or habits of an insured person which have a statistically
proven effect on the health of the person and are approved by the
Commissioner. Also, nothing contained in this section shall preclude
the establishment of a substandard classification based upon the health
condition of the insured, but the initial classification may not be changed
adversely to the applicant after initial issue.
The Commissioner has the right, upon application by any insurer, to
grant relief, for good cause shown, from any requirement of this
section."
SECTION 2. This act takes effect upon approval by the Governor.
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