MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
January 22, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 1:30 p.m., on Friday, January 22, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Lawrence E. Jacobsen
Senator Mike McGinness
Senator Dina Titus
Senator Raymond C. Shaffer
Senator Ernest E. Adler
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Maddie Fischer, Primary Secretary
Sherry Nesbitt, Committee Secretary
Marilyn Hofmann, Committee Secretary
OTHERS PRESENT:
Donald S. Kwalick, M.D., M.P.N., State Health Officer
Kevin Higgins, Deputy Attorney General, Office of the Attorney General, State of Nevada
Anne Cathcart, Deputy Attorney General, Office of the Attorney General, State of Nevada
Cameron Parks, Deputy Attorney General, Office of the Attorney General, State of Nevada
Chris Grygiel, Associated Press
Ben Graham, Legislative Representative, Nevada District Attorney's Association
Nick Carson, Reno Police Department
Jim Nadeau, Washoe County Sheriff's Office
Victoria D. Riley, Nevada Trial Lawyers Association
George Kaiser, M.D., Nevada Department of Prisons
Senator James opened the meeting by addressing procedural items and confirming everyone present to testify with regard to a bill had signed the attendance roster and provided the secretary with the information form indicating the nature of their testimony. Senator James advised the agenda for Monday, January 25, 1993, has been amended only insofar as the meeting room. This meeting will be held in Room 119 to facilitate the use of video teleconferencing with Las Vegas, due to proposed testimony on Senate Joint Resolution 2, and the difficulty of witnesses to testify in person. Las Vegas testimony will take place in Room 207 in Cashman Center.
SENATE JOINT RESOLUTION 2: Proposes to amend Nevada constitution to provide expressly for rights of victims of crime. (BDR C-207)
Senator James further advised, Friday committee meetings will convene immediately after floor session beginning Friday, January 29, 1993.
Senator James presented to the committee copies of a request for a Senate Committee on Judiciary bill draft (Exhibit C ) to expand Nevada Revised Statutes (NRS) 205.920. This statute concerns telecommunications fraud. After explanation of the proposed change, Senator James called for a motion for introduction.
SENATOR SHAFFER MOVED TO MAKE THIS A COMMITTEE BILL DRAFT REQUEST.
SENATOR SMITH SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
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Senator James requested Mr. Neilander submit the request to the Legislative Counsel Bureau.
Before opening testimony on Senate Bill (S.B.) 12, Senator James stated existing law in Nevada Revised Statutes (NRS) 212.070 makes costs for prosecuting any person from escaping from a state prison or committing a crime while in the prison a charge against the state. S.B. 12 would add the prosecution of any person acting in concert with such a prisoner.
SENATE BILL 12: Provides for payment by state of costs of prosecution in additional cases. (BDR 16-510)
Kevin Higgins, Deputy Attorney General, Office of the Attorney General, State of Nevada, presented written testimony (Exhibit D) and explained his office and prosecutors in Ely and Las Vegas currently prosecute all prison escapees in the state. The vast majority of these escapees are walk-aways; 90 percent are found the day of the escape or the next day. An increased number of accomplices are being used. While the attorney general's office has jurisdiction to prosecute accomplices, NRS 212.070 does not provide for payment from the Contingency Fund, which provides funds for prosecution of the escapee. Interest in rural counties is minimal regarding accomplice prosecution, therefore it becomes the attorney general's responsibility. This bill would allow for payment of accomplice prosecution.
Mr. Higgins affirmed Senator James' assumption that this is a fiscal impact bill. His department is now funding prosecution of accomplices, except in cases where a county requests prosecution and can be charged for the same. To his knowledge, this has never occurred in northern Nevada. Mr. Higgins reaffirmed previous testimony regarding the present system.
Senator McGinness asked if a state prisoner is ever held in a county jail as a courtesy, and if so, would the attorney general's office be liable for prosecution. Mr. Higgins replied affirmatively to both questions.
The committee discussed the propriety of referring this bill to the Senate Committee on Finance.
Senator James suggested the proposed bill seems to have no substantive effect on Nevada's criminal law or procedure, but is rather a clean-up provision. He further advised the continuing fiscal impact of this bill to be $5,000 per year. Senator James asked for a motion to pass the bill.
SENATOR ADLER MOVED TO DO PASS S.B. 12 AND RE-REFER IT TO THE SENATE COMMITTEE ON FINANCE.
SENATOR SHAFFER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR McGINNESS WAS ABSENT FOR THE VOTE).
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Senator James closed the hearing on S.B. 12 and opened discussion on S.B. 13, which proposes to amend Nevada Revised Statutes (NRS) 209.385 and Nevada Revised Statues (NRS) 209.511.
SENATE BILL 13: Clarifies authority of department of prisons to determine appropriate method to test offender for human immunodeficiency virus. (BDR 16-515)
Senator James stated this bill would change the language of the statutes to allow such additional tests as considered appropriate by the director of the state Board of Prisons to detect exposure to HIV (Human Immunodeficiency Virus), thus vesting discretion in the director as to the nature of the test and the extent of supplemental tests, rather than the decision being vested only in the State Board of Health. This bill keeps the language providing the test must be approved by the State Board of Health.
Anne Cathcart, Deputy Attorney General, Ofice of the Attorney General, State of Nevada and Dr. George Kaiser, Medical Director, Department of Prisons, provided testimony (Exhibit E and Exhibit F respectively). Referring to her written testimony, Ms. Cathcart affirmed this bill is essentially a clarification of ambiguous language of the statute. The director of the Department of Prisons should have discretion to determine which of various tests for HIV are administered to inmates. Since enactment of the statutes' original provisions, more than one type of test to determine different things have been developed. The cost varies, depending on what is being tested for and how complicated the test. The initial test is $3.50; supplemental tests are $35 to $50. This bill would clarify authority to determine administration of tests. Ms. Cathcart would like to see one minor change to the bill in section 2. When the attorney general's office first submitted the bill for drafting, they were unaware the Department of Prisons planned to introduce S.B. 9 to potentially eliminate exit testing. If the legislature approves S.B. 9 in present form, section 2 of S.B. 13 will probably not be necessary.
SENATE BILL 9: Eliminates requirement that prisoner be tested for human immunodeficiency virus upon release from prison. (BDR 16-914)
Responding to Senator James' request, Ms. Cathcart explained the reason for this bill was to clarify that, even though there might be several different tests approved by the Board of Health, it is not necessary or required by the Department of Prisons to administer every test to every inmate, and the decision of tests administered should be left to the discretion of the Director of the Department of Prisons.
Dr. Kaiser advised the attorney general's office generated S.B. 13 in response to the question of whether to test for HIV II. This is a virus in Africa of which there are presently about 12 cases in the United States. However, the Nevada Revised Statutes state they would test for the HIV virus. Dr. Kaiser's question to the attorney general's office concerned the need to test for each and every type of virus. S.B. 13 would determine which testing is cost effective and produce the net yield, thus the flexibility. Under current procedure, inmates entering prison receive a screening battery for syphilis, hepatitis B, tuberculosis and HIV. Most HIV tests are now done by the State Laboratory in Reno. The cost of this anti-body test is $3.50. If this test is positive, a Western Blot, or confirmatory, test is administered. The cost is approximately $35. Some false positive screening tests are not confirmed by the second test.
Information identifying an inmate HIV positive is relayed to the medical division. As required by state law, the Department of Prisons confidentially distributes this information to certain administrators in the prison system, primarily Classification. Wardens having those inmates in their prisons are notified. Custody staff and officers working with these inmates have access to this information.
Dr. Kaiser affirmed Senator James' assumption that a person can test negative and still have the virus. Aggregately in 1990, 1991, 1992, twelve inmates entering prison negative and exited positive for HIV. Three were false positives with initial test positive, but confirmatory test not positive. Nine were true positives. In reviewing those charts it was apparent at least two of those individuals were likely in the window period, or in the incubation phase entering prison; thus the initial test was negative. Subsequent testing in prison is done for clinical need. If an inmate becomes ill or has a sexually transmitted disease and gives a history of engaging in high risk behavior, the test is repeated on a clinical basis during incarceration. A prisoner could certainly come in falsely negative and this would not be known if the inmate did not receive subsequent testing until leaving. Dr. Kaiser believes this was part of the logic of exit testing. On the other hand, the incidence of positivity when the inmates leave is .14 percent, an extremely low figure out of 6265 tests over 3 years; 12 positive, 3 false positive, only 9 true positives.
Senator Shaffer asked if the board's desire is exit testing at their discretion. Dr. Kaiser believed they would request mandatory exist testing be eliminated, as inmates have basically been tested on entry and tests for clinical need are administered during their period of incarceration. If an inmate becomes ill during incarceration, or if there is an incident involving a blood spill and possibly exposure to another inmate or staff, that inmate can be tested by law, involuntarily. Dr. Kaiser felt exit testing is not cost effective. Also, the prison now releases inmates from rural camps causing a logistical problem; people must be sent to the rural camps to have the test drawn.
Senator James suggested the discussion was bleeding over to the other legislation, S.B. 9.
SENATE BILL 9: Eliminates requirement that prisoner be tested for human immunodeficiency virus upon release from prison. (BDR 16-914)
Senator James felt this is where the greater concern of the committee lies; the first part of the amendment in S.B. 13 deals with what kind of test is administered. He reiterated Dr. Kaiser's testimony regarding numerous tests and a virus we do not even have; therefore some discretion was given to determine what kind of test is administered. In the second substantive change, the proposal in the other legislation is to eliminate the exit testing altogether. Senator James asked Dr. Kaiser to explain how results of exit tests are used and, in his view, what purpose these tests serve in administering the prison system.
Dr. Kaiser's feeling was exit testing serves no significant purpose in administering the prison system. He believes the exit test does have minimal public health benefit by yet identifying other individuals who are HIV positive, therefore having a positive benefit for that particular individual, and a health benefit because results are reported to the health division. However, he did not feel the test improves the liability stance of the prison, nor does it have any significant impact on clinical care delivered to inmates.
Senator James believed the question concerns what public purpose is served to have people entering a high risk environment, and being subjected to activities and environments putting prisoners at risk of contracting this disease. Upon exiting prison, evidently the legislature felt it was important to know if we now have a person who has HIV as a result of their confinement. The present proposal is to eliminate this and no longer have that knowledge. His concern was Dr. Kaiser's statement that an inmate who has the HIV virus can leave the prison unidentified, due to the inmate entering prison HIV negative, either in reality or having been in the incubation stage, or testing false positive. This may be a small number of people, but it can be missed. Secondly, Dr. Kaiser described the tests done during incarceration are on a clinical basis; if a person becomes ill or the department becomes aware the inmate is exposed to something which would put them at risk, they are tested. However, if an inmate's exposure to a high risk situation does not come to the attention of the prison director, no testing would be done during incarceration. If exit testing is eliminated, we well could have either someone who had the HIV virus when entering, missed, or someone who contracted it during prison, leaving the system without knowledge.
Senator James' specific question and the question the committee must decide is whether there is enough concern for the committee to be very reticent to remove this public health protection existing in the statute.
Dr. Kaiser assured the committee he had consulted all charts that the board was able to locate concerning individuals who have converted during incarceration. These charts derived from inmates' clinical records, and the records themselves, have been reviewed to determine if anything obvious suggested the reason for the inmates' conversion from HIV negative to positive. Without absolute scientific evidence, it was Dr. Kaiser's opinion that probably about one-quarter of those inmates were in fact incubations. Other inmates who had converted in prison were those who had actually engaged in sexual activity, needle use, or some other type of high-risk activity. It was not apparent from the low number of incidence conversions that being in prison itself, for example, being in the same room, being a cell mate, using the same toilet or other types of activities was likely to be the cause of transmission of HIV. Certainly someone could have transmission of HIV if there is a significant blood spill onto open wounds or mucus membranes. However, it was Dr. Kaiser's opinion that being in prison itself is unlikely to cause transmission of HIV without engagement of high-risk activity.
Senator James questioned the lack of awareness of high-risk behavior on the part of the person responsible for determining whether a test for HIV be given during incarceration. Dr. Kaiser replied if there is a traumatic event, for example, a significant blood spill or an officer being attacked creating a potential for HIV transmission, an analysis is done for hepatitis and HIV as mandated by law. The need is determined on an incident-by-incident basis. Dr. Kaiser agreed there could be high-risk activity occurring in prison of which administration is not aware, although .14 percent is a very low number of conversions over a 3-year period.
Senator James reiterated his concern of activity of which officials do not have knowledge. No knowledge and therefore no testing would mean a person could leave prison with the HIV virus, if exit testing is eliminated. Dr. Kaiser agrees this happens, however from statistics it is a very low rate.
Senator Titus inquired how much money the attorney general's office hopes to save by eliminating exit testing. Dr. Kaiser advised the savings would be approximately $7,000 per year and additionally eliminate the logistical difficulties in drawing the tests in the rural camps.
Senator Titus requested affirmation that elimination of exit testing would be a minimal health benefit to the individual, and a minimal health benefit to the public, but costs $7,000 per year and is inconvenient to administer. Dr. Kaiser responded it costs the state approximately $2400 to screen 99.86 percent of the people who are negative to detect the .14 percent who are positive. The $7000 per year is currently spent on exit center testing, on people known to be negative.
Senator Jacobsen wondered if the state could later be held liable for the person having contracted HIV in prison and given no test.
Dr. Kaiser agreed this could certainly be a claim. Not having been here in 1987 he suspects the logic in adding exit testing was to put the state in a more defensible position. Hepatitis B, for example, is studied more than HIV transmissions due to most prisons doing less testing than Nevada. Looking at medical literature regarding Hepatitis B, Hepatitis is more easily transmitted during incarceration without engaging in high-risk activity, or having exposure to blood products.
Dr. Kaiser confirmed Senator Jacobsen's assumption that the test is only a blood test.
Senator Adler asked why exit testing is being done at all. He acknowledged Dr. Kaiser's statement of the cost being only $7000 however, this is general fund money renouncing pre-natal care for 600 indigent women which will not be funded this session, which he felt far more valuable. The senator questioned the validity of funding this bill due to released prisoners' being extremely difficult to locate, and whether they are HIV positive or negative, there will be no control over their behavior. If the idea is to identify the HIV-positive person on the streets, every resident of the state should be tested. Prisoners are the only group in Nevada being tested; 100% on intake. Senator Adler did not see the validity of exit testing. Statistics do not show this will reduce the HIV rate in the state.
Senator James asked Dr. Kaiser if information obtained by exit testing is used to prevent the infected inmate from spreading the disease. Dr. Kaiser confirmed some difficulty in tracking inmates after release. An investigator is sent out, counseling is done with the inmate who is converted whether still in prison or after release, and contact tracing is conducted. Dr. Kaiser deferred further questions to Dr. Kwalick, State Health Officer.
Senator James' primary concern directed to Dr. Kaiser was how many people can be infected by one person leaving prison having HIV and engaging in high-risk behavior, and what is the cost to society in spreading this disease. Dr. Kaiser concurred with this concern and advised the ability to transmit the virus varies in males and females with the rate of transmission appearing to be greater from male to female. Further information in this area will be responded to by Dr. Kwalick. Studies reviewed by Dr. Kaiser indicated the type of high-risk activity engaged in determine rate of transmission. Transmission from female to male is less likely but still can occur with a person who is a prostitute. If a person is an intravenous drug user using dirty equipment, high incidence of transmission is far more likely. Each of the nine people who converted had a history of intravenous drug abuse. Dr. Kaiser believed this is where the prison population of HIV-positive persons is derived.
Dr. Kaiser, responding to Senator James' concern over the statement of a potential 100 people being infected from one prostitute, stated he does not believe the virus is transmitted in each sexual contact. For herpes, twelve sexual contacts with an infected person is necessary before likelihood of contracting the disease.
Dr. Kwalick advised in exit testing as it presently exists, the State Board of Health is notified by prisons approximately one week to one and one-half weeks after a positive exit test. The individual is in the community whereabouts unknown. Efforts to find the individual are usually unsuccessful. He assumed a better chance of location is possible if the individual is on parole. The State Board of Health supports the changes in legislation, primarily due to the exit testing being unproductive. The .14 percent is similar to that presently found upon entry into military service. The high-risk behavior individuals have been weeded out.
Senator James wondered if the ineffectiveness of the test is due to lack of notice. With more notice would the board have more success in locating the individual? Dr. Kwalick agreed if the board had 2 or 3 months' notice and knew where the individual would be located after exit from the prison system, the board could contact the individual and re-emphasize ongoing education in the prison. The only way to prevent spread of the disease is through education and safe sex.
Senator Jacobsen asked if a new employee in the system, for example a guard, is tested on entry. Dr. Kwalick stated there is no requirement in this regard.
Ms. Cathcart commented on the likelihood of locating inmates who have left the system. She was unsure that even more notice would be helpful. Her experience in dealing with inmates' civil rights litigation confirms once an inmate leaves the system, the inmate cannot be found for most purposes. If an inmate is on parole, chances are slightly better. A very large percent do not keep in contact with parole officers.
Senator James asked Mr. Neilander to locate the legislative history of the present law for him and other committee members wishing a copy. Senator James wished to review this history and the testimony given before a vote is taken on these bills.
Senator James stated if the committee rejects S.B. 9 which eliminates subsection f of NRS 209.511, the committee would be faced with adopting the amended language in subsection f proposed in S.B. 13 which changes it from "a" test to "at least one test". Senator James asked Ms. Cathcart to explain why this change is proposed.
Ms. Cathcart believed the State Prison Board knew there would be at least one test. If there is a requirement to test upon exit, there will be a minimum of one, but always a possibility if that test is positive the inmate should have a supplemental test. For this reason "at least one" is proposed.
Ms. Cathcart agreed with Senator James' assertion the proposal is actually to expand the ability to do the exit testing if a screening test is obtained and follow-up needed.
Senator James asked for any further testimony in support or opposition to S.B. 13 or S.B. 9.
Senator Adler wondered how successful counseling sessions are in altering behavior of inmates testing positive on intake and then released into Nevada's population. In his experience, inmates who are former drug addicts do not pay much attention to whether or not they are HIV positive. He had a conversation with such an inmate who told him if a person is into shooting drugs, the fact that person is HIV positive does not make much difference. This seems a very pervasive attitude among these types of people. Senator Adler asked the doctors' experience with this, and did they believe counseling alters the behavior of these people?
Dr. Kaiser felt it does alter some people's behavior to find out they are HIV positive. If the person is an ongoing substance abuser, HIV transmission is likely tied to the effectiveness of substance abuse treatment. If the individual has effective substance abuse treatment and the mode of transmission is by intravenous drug abuse, the person is much less likely to continue. He believed literature supports this. He believed there are some individuals having a significant personal change in their lifestyle after finding out they are HIV positive. He would not say being in prison or being cared for by the prison medical services is the cause. An ongoing program of HIV education exists, tailored for those inmates who are HIV positive, but each and every inmate entering the prison system gets an educational experience about HIV, the modes of transmission, and information as to how access prison medical services. For those individuals found to be positive on intake, Dr. Kwalick's staff comes to the prison, has an individual session or sessions with those inmates, does a contact tracing with the inmate's family to determine whether individuals related to that person may be infected with HIV.
Senator Adler asked for confirmation this type of counseling together with drug abuse counseling are perhaps the most effective ways to stop people from engaging in high-risk behavior causing HIV.
Dr. Kaiser agreed there are people who acquire HIV from ongoing substance abuse problems, addiction per se. To impact their HIV transmission the substance abuse must be treated. With luck, a 30 to 50% yield is realized and hopefully will decrease their chance of transmission to others.
Senator James stated one of the purposes of punishment in addition to deterrence, isolation, and retribution, is rehabilitation; one of the objectives of the prison system is to turn out somebody who has been rehabilitated to take part in society. Senator James voiced concern regarding inmates placed into a situation where they may be exposed to this terrible disease, possibly unwillingly on their part, in conduct that is forced upon them or just by virtue of the environment in which they are placed. When the State Department of Prisons turns someone out of the prison system that is truly ready to have a fresh start, Senator James' concern is the prisoner comes out of prison having been in this environment, exposed to this; and that prisoner may not have the financial or intuitive wherewithal to test himself, or herself, to discover whether he or she is positive. The former prisoner might then expose his or her family or someone else to this disease. Therefore, part of the desired rehabilitation possibly has not been accomplished. Senator James wondered if that is another reason to continue this; that to be truly rehabilitated a person ought to know whether or not he or she has been exposed.
Dr. Kwalick agreed this incident could occur, but the prison has an ongoing system whereby if an inmate experienced an untoward action, the inmate would know he or she was exposed to a high-risk activity and could ask for the test while in prison. That test could be performed and repeated upon release, and the person would know whether he or she was positive, and take whatever actions necessary to stop the spread of the disease.
Senator James voiced concern regarding someone raped in prison, wanting to have a test. It would seem this would be that person's first desire, but because of fear, especially in the prison system, or embarrassment, possibly this is the last thing they would do. This is one problem with this issue; the terrible social stigma attached to it, especially being exposed to the disease in prison. Someone might not come forward and be punished for the activity which put the prisoner in that position. For the entire Nevada prison system, to find out if someone is exiting the prison HIV positive costs $7000 a year and is already part of the prison budget. Senator James' concern is in eliminating that relatively small amount of expenditure if what is being dealt with here is a large question.
Dr. Kaiser stated he took exception to the statement prison environment itself is likely to cause HIV transmission. His research and the research analysis of charts and of others with hepatitis B indicate those types of things are not acquired in prisons unless there is engagement of high-risk activity. Individuals who are HIV positive from screening, engaging in high-risk activity are placed in administrative segregation. Some of those individuals are in administrative segregation now; they are isolated and will stay isolated for a very long period of time.
Senator Adler recalled working with prisons as a deputy district attorney, and actual prison rapes were a very rare occurrence, the reason being a large number of people voluntarily engaging in that activity. He would think transmission more prevalent from voluntary sexual activity than prison rape. The rapes he knew of as a deputy were readily reported by the inmates and appropriate actions taken by the medical staff to do various tests.
Dr. Kaiser agreed this is a possibility but is not like prison movies where it is a daily occurrence. It is more on the rare scale compared to voluntary activity which he would consider the larger problem in his experience working within the institutions.
Dr. Kaiser affirmed Senator McGinness' assumption that by the time results are received, the prisoner is out of the system. This renders the results meaningless; the inmates cannot be tracked.
Senator James asked for further questions or comments from members of the committee. Hearing none, he suggested holding voting on these two bills pending review of prior legislative history. He encouraged any committee member wishing to review the history to obtain a copy from the committee secretaries. Both bills will be brought up for consideration. If it is decided to pass S.B. 9, S.B. 13 will be amended to eliminate subsection f. These matters will be scheduled for committee consideration unless a regular hearing to take additional testimony is needed.
Dr. Kwalick responded to Senator Jacobsen's question regarding the time frame of the test. The state laboratory does most testing, and two tests exist. Two tests, Eliza tests, are first performed; and if a positive result is achieved, a Western Blot confirmation test is performed. The results might take as long as a week. If an exit test, the prisoner's whereabouts are unknown at the receipt of test results. A positive result is easily identified on confirmatory testing.
Senator James thanked the witnesses for attending this meeting. He acknowledged new people entering the room, and asked if anyone present had testimony regarding either S.B. 9 or S.B. 13. Senator James asked for any other business to come before the committee, and hearing none, declared the meeting adjourned at 3:15 p.m.
RESPECTFULLY SUBMITTED:
Sherry Nesbitt,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
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Senate Committee on Judiciary
January 22, 1993
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Senate Committee on Judiciary
January 22, 1993
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