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Indicates Matter Stricken
Indicates New Matter
Indicates Matter Stricken
Indicates New Matter
March 13, 2018
Introduced by Senators Shealy, Sheheen, Young, McLeod, McElveen and Climer
S. Printed 3/13/18--S.
Read the first time January 9, 2018.
TO AMEND CHAPTER 11, TITLE 63 OF THE 1976 CODE, RELATING TO CHILDREN'S SERVICES AGENCIES, BY ADDING ARTICLE 22, TO CREATE THE DEPARTMENT OF CHILDREN'S ADVOCACY, TO PROVIDE THAT THE DEPARTMENT SHALL BE HEADED BY THE STATE CHILD ADVOCATE, TO PROVIDE THAT THE DEPARTMENT SHALL BE COMPRISED OF DEPUTY CHILD ADVOCATES, INVESTIGATORS, AND OTHER STAFF TO BE EMPLOYED AS NECESSARY BY THE STATE CHILD ADVOCATE, TO PROVIDE THAT THE STATE CHILD ADVOCATE IS RESPONSIBLE FOR ENSURING THAT CHILDREN RECEIVE ADEQUATE PROTECTION AND CARE FROM SERVICES OR PROGRAMS OFFERED BY THE DEPARTMENT OF SOCIAL SERVICES, THE DEPARTMENT OF MENTAL HEALTH, THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, THE DEPARTMENT OF JUVENILE JUSTICE, THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, THE DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS, THE JOHN DE LA HOWE SCHOOL, THE WIL LOU GRAY OPPORTUNITY SCHOOL, AND THE SCHOOL FOR THE DEAF AND BLIND, TO PROVIDE THAT RECORDS ACQUIRED BY THE DEPARTMENT ARE CONFIDENTIAL, TO PROVIDE FOR THE DUTIES AND RESPONSIBILITIES OF THE DEPARTMENT, TO PROVIDE THAT THE STATE CHILD ADVOCATE MAY PERFORM AN INDEPENDENT INVESTIGATION OF A CRITICAL INCIDENT OR REVIEW A COMPLETED CRITICAL INCIDENT INVESTIGATION PERFORMED BY A STATE AGENCY, TO PROVIDE FOR THE PARAMETERS OF AN INVESTIGATION, TO PROVIDE THAT THE DEPARTMENT OF CHILDREN'S ADVOCACY SHALL ESTABLISH A SINGLE, STATEWIDE, TOLL-FREE CHILD ABUSE HOTLINE TO RECEIVE ALL REPORTS OF SUSPECTED CHILD ABUSE OR NEGLECT, AND TO PROVIDE FOR FURTHER PURPOSES AND PUBLICATION OF THE HOTLINE; TO AMEND SECTION 1-3-240(C)(1) OF THE 1976 CODE, RELATING TO THE REMOVAL OF OFFICERS BY THE GOVERNOR, TO ADD THE STATE CHILD ADVOCATE AS A PERSON APPOINTED THAT MAY BE REMOVED BY THE GOVERNOR FOR MALFEASANCE, MISFEASANCE, INCOMPETENCY, ABSENTEEISM, CONFLICTS OF INTEREST, MISCONDUCT, PERSISTENT NEGLECT OF DUTY IN OFFICE, OR INCAPACITY; TO AMEND SECTION 63-7-360 OF THE 1976 CODE, RELATING TO MANDATORY REPORTING TO THE CORONER, TO PROVIDE THAT THE MEDICAL EXAMINER OR CORONER SHALL ACCEPT REPORTS FROM PERSONS REQUIRED TO REPORT SUSPECTED CHILD ABUSE OR NEGLECT AND REPORT HIS FINDINGS TO THE DEPARTMENT OF CHILDREN'S ADVOCACY; TO AMEND SECTION 63-7-370 OF THE 1976 CODE, RELATING TO DOMESTIC VIOLENCE REPORTING, TO PROVIDE THAT A LAW ENFORCEMENT OFFICER UPON RECEIPT OF A REPORT OF DOMESTIC VIOLENCE SHALL REPORT THE INFORMATION TO THE DEPARTMENT OF SOCIAL SERVICES AND TO THE DEPARTMENT OF CHILDREN'S ADVOCACY'S SINGLE, STATEWIDE, TOLL-FREE CHILD ABUSE HOTLINE IF THE PEOPLE INVOLVED IN THE REPORTED DOMESTIC VIOLENCE ARE RESPONSIBLE FOR THE WELFARE OF A CHILD; TO AMEND SECTION 63-11-500(A) AND SECTION 63-11-540 OF THE 1976 CODE, BOTH RELATING TO THE CASS ELIAS MCCARTER GUARDIAN AD LITEM PROGRAM, TO PROVIDE THAT THE PROGRAM MUST BE ADMINISTERED BY THE DEPARTMENT OF CHILDREN'S ADVOCACY; TO AMEND SECTION 63-11-700(A) AND SECTION 63-11-730(A) OF THE 1976 CODE, BOTH RELATING TO THE DIVISION FOR REVIEW OF THE FOSTER CARE OF CHILDREN, TO PROVIDE THAT THE DIVISION FOR REVIEW IS WITHIN THE DEPARTMENT OF CHILDREN'S ADVOCACY OF THE FOSTER CARE OF CHILDREN; TO AMEND SECTIONS 63-11-1310, 63-11-1340, 63-11-1360, AND 63-11-1510 OF THE 1976 CODE, ALL RELATING TO THE CONTINUUM OF CARE FOR EMOTIONALLY DISTURBED CHILDREN, TO PROVIDE THAT THE CONTINUUM OF CARE IS WITHIN THE DEPARTMENT OF CHILDREN'S ADVOCACY; TO AMEND SECTION 63-11-1930(A) OF THE 1976 CODE, RELATING TO THE STATE CHILD FATALITY ADVISORY COMMITTEE, TO ADD THE STATE CHILD ADVOCATE AS A COMMITTEE MEMBER; TO AMEND SECTION 59-36-20 OF THE 1976 CODE, RELATING TO THE COMPREHENSIVE SYSTEM OF SPECIAL EDUCATION AND SERVICES, TO DELETE ANY REFERENCE TO THE CHILDREN'S CASE RESOLUTION SYSTEM; TO REPEAL ARTICLE 11, CHAPTER 11, TITLE 63 OF THE 1976 CODE, RELATING TO THE CHILDREN'S CASE RESOLUTION SYSTEM; TO DELETE SECTION 1-11-10(A)(8) OF THE 1976 CODE, RELATING TO THE CHILDREN'S CASE RESOLUTION SYSTEM; AND TO DEFINE NECESSARY TERMS.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 11, Title 63 of the 1976 Code is amended by adding:
Section 63-11-2210. There is created the Department of Children's Advocacy. The department shall be headed by the State Child Advocate, who is the director of the department. The Governor shall appoint the State Child Advocate from three candidates recommended by the Joint Citizens and Legislative Committee on Children and upon the advice and consent of the Senate for a term of six years. The Governor may reappoint the State Child Advocate for additional terms. The State Child Advocate is subject to removal by the Governor for malfeasance, misfeasance, incompetency, absenteeism, conflicts of interest, misconduct, persistent neglect of duty in office, or incapacity upon recommendation of the Joint Citizens and Legislative Committee on Children. A vacancy shall be filled in the same manner as appointment.
Section 63-11-2215. The Department of Administration shall provide administrative support to the Department of Children's Advocacy for the performance of its duties, including, but not limited to, financial accounting support, human resources administrative support, information technology shared services support, procurement services, and logistical support.
Section 63-11-2220. The department shall be comprised of deputy child advocates, investigators, and other staff to be employed as necessary by the State Child Advocate to carry out the duties of the department as authorized by law. The deputy child advocates serve at will and may be removed by the State Child Advocate. The State Child Advocate shall fix the salaries of all staff subject to the funds authorized in the annual general appropriations act.
Section 63-11-2230. For purposes of this article:
(1) 'Critical incident' means the fatality, near fatality, or serious bodily or emotional injury of a child who is in the custody of or receiving services from a state agency, or circumstances that result in a reasonable belief that a state agency failed in its duty to protect a child, resulting in the imminent risk or suffering of serious bodily or emotional injury, or death, of a child.
(2) 'State agency' means an agency as provided in Section 63-11-2240(A).
Section 63-11-2240. (A) The State Child Advocate is responsible for ensuring that children receive adequate protection and care from services or programs offered by the Department of Social Services, the Department of Mental Health, the Department of Health and Human Services, the Department of Juvenile Justice, the Department of Health and Environmental Control, the Department of Disabilities and Special Needs, the John de la Howe School, the Wil Lou Gray Opportunity School, and the School for the Deaf and Blind.
(B) The State Child Advocate must not have been the director or deputy director of a state agency for a period of four years preceding his appointment. This subsection does not apply to deputy directors employed by the Department of Children's Advocacy.
(C) The State Child Advocate must be selected without regard to political affiliation and on the basis of integrity and a capability for strong leadership and must possess the following minimum qualifications:
(a) a baccalaureate degree from an accredited college or university; and
(b) at least ten years of experience in family or children's law, children's social work, or children's health and welfare.
Section 63-11-2250. Any and all information and records acquired by the Department of Children's Advocacy in the exercise of the office's purpose and duties under this chapter shall be confidential and exempt from public disclosure under Chapter 4, Title 30.
Section 63-11-2260. The State Child Advocate shall receive compensation as established under the provisions of Section 8-11-160 and for which funds have been authorized in the general appropriations act.
Section 63-11-2270. The Department of Children's Advocacy shall:
(1) ensure that children under the care of a state agency, particularly children served by the child welfare or juvenile justice systems, receive timely, safe, and effective services and shall safeguard the health, safety, and well-being of all children receiving services;
(2) examine, on a system-wide basis, the care and services that state agencies provide children and shall provide recommendations to improve the quality of those services in order to give each child the opportunity to live a full and productive life;
(3) develop and promote a broad vision for reform, driven by the values and goals of child-serving agencies, to make the services and programs provided by state agencies more effective for children, youth, families, and communities;
(4) receive and investigate complaints related to the provision of services to children by a state agency, shall review and monitor the complaints that reasonably cause the department to believe that a child may be in need of assistance, and shall ensure that the complaints are resolved. If a complaint is not resolved by the relevant state agency within a reasonable period of time in light of the circumstances, if the resolution is determined to be unsatisfactory to the State Child Advocate, or if the complaint reasonably causes the State Child Advocate to believe that a child may be in need of immediate assistance, then the State Child Advocate may conduct an investigation of the complaint;
(5) receive and investigate complaints from children in the care of the State, shall assist such children in resolving problems and concerns associated with their placement and plans for lifelong adult connections and independent living, shall ensure that relevant state agencies have been alerted to the complaints, and shall facilitate intra-agency cooperation, if appropriate;
(6) undertake activities designed to educate the public regarding the services and the independent role of the department and the mission of state agencies in providing services to children and families;
(7) annually submit a report to the Governor, President Pro Tempore of the Senate, Speaker of the House of Representatives, and Joint Citizens and Legislative Committee on Children detailing the State Child Advocate's activities; and
(8) have access at any and all reasonable times to any facility, residence, program, or portion thereof that is operated, licensed, or funded by a state agency and shall have unrestricted access to all electronic information systems records, reports, materials, and employees in order to better understand the needs of children in the custody of the State or children who are receiving services from a state agency. The Department of Children's Advocacy shall also have access to relevant records held by the clerks of the family courts and the clerks of the probate courts and shall also have the right to inspect and copy such records, without cost.
Section 63-11-2280. (A) A state agency shall inform the Department of Children's Advocacy within twenty-four hours of a critical incident.
(B)(1) The State Child Advocate may perform an independent investigation of a critical incident, or the State Child Advocate may review a completed critical incident investigation performed by a state agency. If the State Child Advocate conducts his own investigation, then he shall investigate:
(a) the factual circumstances surrounding the critical incident;
(b) whether an agency's activities or services provided to a child and his family were adequate, appropriate, and in accordance with agency policies and state and federal law; and
(c) whether the agency's policies, regulations, training, or delivery of services or state law can be improved.
(C) As part of an investigation, the State Child Advocate may:
(1) administer oaths;
(2) examine witnesses under oath;
(3) issue subpoenas and subpoenas duces tecum; and
(4) examine the records, reports, audits, reviews, papers, books, recommendations, contracts, correspondence, or any other documents maintained by an agency.
(D) The State Child Advocate may apply to a circuit court for an order holding an individual in contempt of court if the individual refuses to give sworn testimony under a subpoena issued by the State Child Advocate or otherwise disobeys a subpoena or subpoena duces tecum issued by the State Child Advocate.
(E) In addition to the reporting requirements in subsection (A), if the State Child Advocate has reasonable cause to believe that a crime has occurred or is occurring, then he shall immediately report the matter to the appropriate state or federal law enforcement agencies and prosecuting authorities with jurisdiction over the matter.
Section 63-11-2290. (A) The Department of Children's Advocacy shall establish a toll-free public telephone number and an electronic complaint submission form on the department's website for the purpose of receiving complaints relative to the provision of services to children by a state agency. The department shall transfer a complainant to the appropriate agency if the complainant's submission is related to abuse, neglect, or an open matter within another agency.
(B) The following agencies must post the toll-free public telephone number and the web address of the department's electronic complaint submission form prominently in clear view of all employees and the public and in a conspicuous location on the agency's website:
(1) Department of Social Services;
(2) Department of Mental Health;
(3) Department of Juvenile Justice;
(4) Department of Health and Environmental Control;
(5) Department of Health and Human Services;
(6) Department of Disabilities and Special Needs;
(7) John de la Howe School;
(8) School for the Deaf and Blind; and
(9) Wil Lou Gray Opportunity School.
Section 63-11-2295. (A) Complaints regarding any allegations against the State Child Advocate, the Department of Children's Advocacy, or any of its affiliated divisions should be submitted in writing to the State Inspector General under the authority provided by the provisions of Chapter 6, Title 1. The State Inspector General shall determine if an investigation is warranted and shall provide a written finding at the end of an investigation, which must be provided to the complainant, the Governor, the Joint Citizens and Legislative Committee on Children, and the State Child Advocate. The State Child Advocate shall develop policies and procedures for receipt of such complaints and their referral to the State Inspector General.
(B) No discriminatory, disciplinary, or retaliatory action may be taken against an employee of an agency, an employee of an entity contracting with an agency, a foster parent, or a recipient of family and children's services for any communication made, or information given or disclosed, to aid the department in carrying out its responsibilities, unless the communication or information is made, given, or disclosed maliciously or without good faith."
SECTION 2. Section 63-7-360 of the 1976 Code is amended to read:
"Section 63-7-360. A person required under Section 63-7-310 to report cases of suspected child abuse or neglect, including workers of the department, who has reason to believe a child has died as the result of child abuse or neglect, shall report this information to the appropriate medical examiner or coroner. Any other person who has reason to believe that a child has died as a result of child abuse or neglect may report this information to the appropriate medical examiner or coroner. The medical examiner or coroner shall accept the report for investigation and shall report his findings to the appropriate law enforcement agency, the circuit solicitor's office, the county department of social services, the Department of Children's Advocacy, and, if the institution making a report is a hospital,
to the hospital."
SECTION 3. Section 63-11-500(A) of the 1976 Code is amended to read:
"Section 63-11-500. (A) There is created the Cass Elias McCarter Guardian ad Litem Program in South Carolina. The program shall serve as a statewide system to provide training and supervision to volunteers who serve as court-appointed special advocates for children in abuse and neglect proceedings within the family court, pursuant to Section 63-7-1620. This program must be administered by the
Department of Administration Department of Children's Advocacy."
SECTION 4. Section 63-11-700(A) of the 1976 Code is amended to read:
"Section 63-11-700. (A) There is created, within the
Department of Administration Department of Children's Advocacy, the Division for Review of the Foster Care of Children. The division must be supported by a board consisting of eight seven members, all of whom must be past or present members of local review boards. There must be one member from each congressional district, all appointed by the Governor with the advice and consent of the Senate."
SECTION 5. Section 63-11-730(A) of the 1976 Code is amended to read:
"Section 63-11-730. (A) No person may be employed by the
Division for Review of the Foster Care of Children, within the Department of Administration, Department of Children's Advocacy or may serve on the state or a local foster care review board if the person:
(1) is the subject of an indicated report or affirmative determination of abuse or neglect as maintained by the Department of Social Services in the Central Registry of Child Abuse and Neglect pursuant to subarticle 13, Article 3, Chapter 7;
(2) has been convicted of or pled guilty or nolo contendere to:
(a) an 'offense against the person' as provided for in Title 16, Chapter 3;
(b) an 'offense against morality or decency' as provided for in Title 16, Chapter 15; or
(c) contributing to the delinquency of a minor, as provided for in Section 16-17-490."
SECTION 6. Section 63-11-1310 of the 1976 Code is amended to read:
"Section 63-11-1310. It is the purpose of this article to develop and enhance the delivery of services to severely emotionally disturbed children and youth and to ensure that the special needs of this population are met appropriately to the extent possible within this State. To achieve this objective, the Continuum of Care for Emotionally Disturbed Children Division is established as a division of the
Department of Administration Department of Children's Advocacy. This article supplements and does not supplant existing services provided to this population."
SECTION 7. Section 63-11-1340 of the 1976 Code is amended to read:
"Section 63-11-1340. The
Governor State Child Advocate may appoint a Director of the Continuum of Care to serve at his pleasure who is subject to removal pursuant to the provisions of Section 1-3-240. The director shall employ staff necessary to carry out the provisions of this article. The funds for the division director, staff, and other purposes of the Continuum of Care Division must be provided in the annual general appropriations act. The department, upon the recommendation of the division director, may promulgate regulations in accordance with this article and the provisions of the Administrative Procedures Act and formulate necessary policies and procedures of administration and operation to carry out effectively the objectives of this article."
SECTION 8. Section 63-11-1360 of the 1976 Code is amended to read:
"Section 63-11-1360. The Continuum of Care Division shall submit an annual report to the
Department of Administration Governor and General Assembly on its activities and recommendations for changes and improvements in the delivery of services by public agencies serving children."
SECTION 9. Section 63-11-1510 of the 1976 Code is amended to read:
"Section 63-11-1510. There is established the Interagency System for Caring for Emotionally Disturbed Children, an integrated system of care to be developed by the Continuum of Care for Emotionally Disturbed Children in the
Department of Administration Department of Children's Advocacy, the Department of Disabilities and Special Needs, the State Department of Health and Human Services Finance Commission, the Department of Mental Health, and the Department of Social Services to be implemented by November 1, 1994. The goal of the system is to implement South Carolina's Families First Policy and to support children in a manner that enables them to function in a community setting. The system shall provide assessment and evaluation procedures to insure a proper service plan and placement for each child. This system must have as a key component the clear identification of the agency accountable for monitoring on a regular basis each child's care plan and procedures to evaluate and certify the programs offered by providers."
SECTION 10. Section 63-11-1930(A) is amended by adding an appropriately numbered item to read:
"( ) the State Child Advocate;"
SECTION 11. Section 59-36-20 of the 1976 Code is amended to read:
"Section 59-36-20. (A) The State Board of Education and the State Department of Education are responsible for establishing a comprehensive system of special education and related services and for ensuring that the requirements of the Federal Individuals with Disabilities Education Act are carried out. Other state agencies which provide services for children with disabilities are directed to cooperate in the establishment and support of the system. Agencies with responsibilities under this chapter include: the Department of Mental Retardation, the School for the Deaf and the Blind, the Commission for the Blind, the Department of Health and Environmental Control, the Department of Mental Health, the State Department of Social Services, Continuum of Care, and the State Department of Education.
(B) All public education programs for children with disabilities within the State, including all programs administered by any other state or local agency, are under the general supervision of the persons responsible for education programs for children with disabilities in the State Department of Education and must meet the standards of the State Board of Education.
(C) No provision of this section or of this chapter may be construed to limit the responsibilities of agencies other than the Department of Education from providing or paying for some or all of the cost of services to be provided the state's children with disabilities and the level of service must, at a minimum, be similar to that provided individuals with similar needs.
If agencies are unable to agree on responsibilities for a particular child, the issue must be decided by the Children's Case Resolution System, Article 11, Chapter 11, Title 63."
SECTION 12. Items (1), (21), (22), and (23) of Section 63-7-1990(B) are amended to read:
ombudsman of the office of the Governor or the Governor's designee Department of Children's Advocacy;
(21) the Division for the Review of the Foster Care of Children,
Office of the Governor, for purposes of certifying in accordance with Section 63-11-730 that no potential employee or no nominee to and no member of the state or a local foster care review board is a subject of an indicated report or affirmative determination;
(22) employees of the Division for the Review of the Foster Care of Children
, Office of the Governor and members of local boards when carrying out their duties pursuant to Article 7 of Chapter 11; the department and the division shall limit by written agreement or regulation, or both, the documents and information to be furnished to the local boards;
(23) the Division of Guardian ad Litem,
Office of the Governor, for purposes of certifying that no potential employee or volunteer is the subject of an indicated report or an affirmative determination;"
SECTION 13. Article 1, Chapter 3, Title 1 of the 1976 Code is amended by adding:
"Section 1-3-60. The Governor shall designate, by executive order, the appropriate agency to administer the South Carolina Developmental Disabilities Council in accordance with the Federal Developmental Disabilities Act of 2000, Pub. Law 106-402. The Department of Administration shall provide such administrative support to the Developmental Disabilities Council as it may request and require in the performance of its duties, including, but not limited to, financial accounting support, human resources administrative support, information technology shared services support, procurement services, and logistical support."
SECTION 14. Section 1-11-10(A)(5) of the 1976 Code is deleted.
SECTION 15. Article 11, Chapter 11, Title 63 of the 1976 Code is repealed.
SECTION 16. Section 1-11-10(A)(8) of the 1976 Code is deleted.
SECTION 17. The General Assembly finds that the sections presented in this act constitute one subject as required by Article III, Section 17 of the South Carolina Constitution, in particular finding that each change and each topic relates directly to or in conjunction with other sections on the subject of establishing the Department of Children's Advocacy as clearly enumerated in the title.
The General Assembly further finds that a common purpose or relationship exists among the sections, representing a potential plurality but not disunity of topics, notwithstanding that reasonable minds might differ in identifying more than one topic contained in the act.
SECTION 18. A. Where the provisions of this act transfer duties, programs, or services of the Department of Administration to the Department of Children's Advocacy, the employees, authorized appropriations, and assets and liabilities of these divisions, services, and programs also are transferred to and become part of the Department of Children's Advocacy. All classified or unclassified personnel employed by the divisions, programs, services, or initiatives transferred from the Department of Administration, either by contract or by employment at will, become on July 1, 2019, employees of the Department of Children's Advocacy, with the same compensation, classification, and grade level, as applicable. Before the transfer of the applicable divisions, programs, services, or initiatives of the Department of Administration pursuant to this act, these agencies and organizations shall cause all necessary actions to be taken to accomplish this transfer in accordance with state and federal laws and regulations.
B. Applicable regulations promulgated by the Department of Administration are continued and are considered to be promulgated by the Department of Children's Advocacy. Applicable contracts entered into by the Department of Administration are continued and are considered to be devolved upon the Department of Children's Advocacy at the time of the transfer.
SECTION 19. The repeal or amendment by this act of any law, whether temporary, permanent, civil, or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon or alter, discharge, release, or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 20. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, then such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 21. This act takes effect July 1, 2019.
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