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With a mother and her three children facing deportation, the immigration judge wanted to make sure the woman understood the charges against her. But even with the help of an interpreter speaking in Q’anjob’al, a Mayan language, Magdalena Lucas Antonio de Pascual appeared to comprehend little.

“What language do you speak?” Judge Philip S. Law asked.

“The reason why I left my country?” she replied through the translator.

“I came across the border illegally because I needed to,” she later told the judge.

“I am going to ignore what you just told me, because that’s not what I asked you,” he said. “I am trying to explain the process and your rights.”

Throughout the 50-minute hearing, the misunderstandings kept coming.

Ms. Antonio de Pascual is one of many migrants coming into the United States from remote areas of Central America who only speak indigenous languages. An increase in the number of these migrants is adding to delays in a court system that is already overwhelmed by a backlog of more than 800,000 cases. Now the courts do not have enough interpreters to serve them, pushing the system to its limits, many lawyers, interpreters and advocates say.

United States immigration officials provide interpreters in as many as 350 languages over all, including Mandarin, Creole, Punjabi, Arabic and Russian. But Mam, K’iche’ and Q’anjob’al — all indigenous to Guatemala — have each become one of the 25 most common languages spoken in immigration court in the past few years.

In San Diego, a Q’anjob’al speaker had her asylum hearing pushed back for more than a year because no interpreters were available. In another case, a man whose primary language is Mam was unable to explain that his family had been killed in his Guatemalan town, which could be a basis for asylum, his lawyer said. The problems have seeped into the criminal courts as well: In the case of one man accused of a misdemeanor battery, the court interpreter, who was speaking in Ixil, did not ask him if he was competent to stand trial, as the judge instructed, but instead told him to “pray to God,” according to a complaint filed in Wisconsin state court.

Ashley Tabaddor, an immigration judge in Los Angeles and the president of the National Association of Immigration Judges, said the lack of interpreters was contributing to even more delays.

“It’s a colossal waste of our time to now have to reorganize hundreds of thousands of cases to deal with language issues and then there’s no interpreter,” Ms. Tabaddor said.

The small number of interpreters who do have a basic grasp of indigenous languages are still often ill-equipped to help — they must explain legal terms that are difficult to comprehend in any language and there are significant differences between regional dialects.

With migrants who cannot understand or be understood, lawyers and immigration experts say, there is no way to ensure fairness in court.

“We have an entire infrastructure set up where the default language is Spanish, but there are thousands of people coming to the southern border who can’t communicate that way — and they basically become invisible,” said Blake Gentry, a researcher who estimates that as many as a third of the migrants crossing the border through Arizona do not speak Spanish.

Immigration courts across the country have seen a steady rise in speakers of indigenous Guatemalan languages in the last five years, according to the Justice Department’s Executive Office for Immigration Review, which oversees the court. And they are only the most recent additions to the list, which for several years has routinely included Zapotec, Mixtec, Ixil and Popti, languages from southern Mexico and Central America.

“The lack of interpretation for indigenous people has been a problem for a long time,” said Odilia Romero, a Zapotec interpreter who has been an activist with the Binational Front of Indigenous Organizations for the last 20 years. “But what we see now is something entirely different: We have entire populations showing up with languages that we have not seen in the United States before.

“The court may provide an interpreter so they have fulfilled the requirement, but that doesn’t mean there is any real understanding,” she said.

Although many immigration courts have Spanish interpreters on staff, they rely on private contractors for interpreters of indigenous languages. Nearly all in-person interpreters come from one Virginia-based company, SOS International, which has an $80 million contract with the federal government.

The government could not say how many interpreters are available in specific languages and relies on SOS International, which did not respond to multiple inquiries. A spokeswoman for the Executive Office of Immigration Review said the court tries to accommodate all non-English speakers and constantly monitors the cases nationally to meet new needs.

But getting interpreters to court is hardly a given: With so few of them in such high demand, they have to be arranged weeks or even months in advance. Judges are often forced to rely on interpreters by phone, making it difficult to hear and impossible to understand body language. And interpreter shortages are plaguing courts across the country, including New York and Chicago.

Even when interpreters are in court, it is routinely difficult to explain legal concepts to the migrants, particularly to the vast majority who do not have a lawyer. And because many indigenous interpreters do not speak English, they must use “relay” interpretation — with the judge’s English first being translated into Spanish before being translated to the indigenous language.

In many cases, said Ms. Tabaddor, the immigration judge, migrants who speak only rudimentary Spanish try to get by in that language, sometimes out of shame or a belief that Spanish will help them convince United States officials that they should be allowed to stay.

The problem extends to lawyers, who often can’t speak to their clients. Carmen Chavez, the executive director of the Casa Cornelia Law Center, a nonprofit immigration legal service in San Diego that helps match clients with interpreters, said that of the more than 2,000 cases the group handled last year, roughly a quarter of migrants from Latin America did not speak Spanish.

“It is constantly difficult to find someone who is qualified to interpret for these cases,” she said.

Even among interpreters certified to work in the courts, there is little oversight, and advocates worry whether interpreters and those who hire them are competent.

Since immigrating to Los Angeles from Guatemala in the 1990s, Policarpo Chaj has worked as a K’iche’ interpreter for lawyers, doctors and other businesses. Mr. Chaj said he has repeatedly heard of lawyers trying to hire anyone they meet who speaks K’iche’ and Spanish.

“Speaking a language is not the only thing that makes you qualified to be an interpreter,” he said. “You have to understand the law, you have know how to write, you have to know how to ask something concrete. You are dealing with people’s rights, it is your moral responsibility to make sure they understand exactly what the judge is saying.”

It’s possible for migrants to not encounter a single person who speaks their language on their path through the immigration system, making it all but impossible to give officials information. While most agents working along the Mexican border and in detention centers speak at least basic Spanish, few know any indigenous languages. Officers often grow frustrated and accuse these migrants of being uncooperative, leaving them even more confused, lawyers and advocates say.

Children who do not speak Spanish are especially isolated, shelter workers say. They are left without the ability to speak with counselors and are more likely to act out, then are punished or medicated. Parents who only speak an indigenous language often cannot communicate that they have been separated from their children.

Even migrants with lawyers are often forced to depend on their bilingual children for further help.

In court, Ms. Antonio de Pascual struggled to explain her situation through the court interpreter. The family arrived last summer, meeting her husband who has lived in the San Diego area for several years. She enrolled each of her children in school, and her 8-year-old daughter refused to miss class for the court hearing. Ms. Antonio de Pascual, who is illiterate, said she could not remember what forms she signed or questions she answered when she spoke to United States officials near the border last year.

Ms. Antonio de Pascual’s initial hearing had already been postponed because no interpreter was available. As this recent one ended, she asked the judge to give her six months to save money for a lawyer. Saying that would be too much time, the judge said he wanted her back in court in June and expected her to begin looking for a lawyer immediately.

When she was dismissed, her 12-year-old son, who speaks limited Spanish and Q’anjob’al, took the stack of court documents, placing them inside his small green backpack. He said he planned to spend the afternoon calling the phone numbers listed for pro bono lawyers who might take their case.

https://www.nytimes.com/2019/03/19/us/translators-border-wall-immigration.html

The Affordable Care Act (ACA) is comprised of provisions designed to expand access to subsidized health insurance coverage and reduce the number of uninsured, which will cause a predicted 30 million newly-insured patients to flood what some deem to be an already overburdened healthcare system—and 9 million of whom are limited English proficient (LEP) and speak a primary language other than English. Despite federal law mandating language services for limited LEP patients, they do not often have support when seeking healthcare services. Hospitals must now meet new regulatory standards and provide interpreting services or risk noncompliance with federal law—a move that could land them in severe financial jeopardy as a result of medical malpractice.

Healthcare providers are already encountering a rising number of LEP patients. Over 50 million Americans are LEP, a number that is growing rapidly and has increased by 30 percent over the past decade—more than triple the growth rate of the overall U.S. population. But despite studies proving that language barriers are highly associated with repeat visits to the emergency room and an increased likelihood for fatal consequences and medical malpractice lawsuits, fewer than half of patients who need an interpreter usually get such assistance.

A major problem that hospitals face in providing language services is that they are costly: the average U.S. hospital spends nearly $1 million a year on language services. And although these services are available, they are often underutilized because they are difficult to access, leading providers to sometimes communicate with LEP patients using methods such as hand signals and informal interpreters like the patients’ own family members.

However, according to industry experts “The costs of language services pale in comparison to those associated with malpractice suits due to language barriers.”

As LEP individuals begin representing an overwhelmingly large percentage of the population, providing the language services currently used by most facilities—such as in-person interpreting—will become more expensive, and the resulting landscape will not only necessitate a more effective strategy that allows patients and interpreters to interact face-to-face, but will also provide a major incentive for healthcare organizations to provide the most effective services possible for LEP patients.

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On May 13, 2016 the Department of Health and Human Services (DHHS) formally adopted final changes to section 1557 of the Affordable Care Act ACA. The new rules took effect on July 18, 2016 and are codified as 45 CFR part 92. These changes are sweeping in scope as they apply to “every [federal] health program or activity, any part of which receives Federal financial assistance.”

Section 1557 is a “non-discrimination” provision that broadly prohibits discrimination in health care or health coverage on the basis of race, “color”, national origin (including immigration status and English language proficiency). Section 1557 is unique among Federal civil rights laws in that it specifically addresses discrimination in health programs and activities. The final rule combines, expands (by prohibiting discrimination on the basis of sex, sexual orientation and gender identity) and harmonizes existing, well-established federal civil rights laws and clarifies the standards that HHS will apply in implementing Section 1557 of the Affordable Care Act.

Section 1557 explicitly prohibits discrimination by:

• Any health program or activity that receives federal financial assistance, including credits, subsidies, or contracts of insurance (e.g. Medicaid and CHIP)
• Any program or activity that is administered by a federal agency (e.g. Medicare and the federally facilitated marketplace); and
• Any entity created under Title I of the ACA (e.g. state-based, state partnership and the federally facilitated marketplaces).

As these proposed changes apply to national origin discrimination (and hence to immigrants and Limited English Proficient patients), the major changes are as follows:

• Hospitals, health plans, clinics, nursing homes, physicians and other providers must offer “qualified interpreters” to Limited English Proficient patients. The major problem in the language access field is that too often, providers attempt to “get by” without the use of trained interpreters when treating LEP patients. Despite a strong consensus in the academic and research communities about the quality and safety risks of using untrained bilingual staff, adult family members and friends and minor children as interpreters, even today a majority of providers throughout the U.S. continue to use untrained interpreters even when qualified interpreters are readily available in person or remotely via telephone or video remote devices.

Subpart C to Section 1557 of the ACA deals with these issues head on. Specifically, subsection 92.201 addresses meaningful access for individuals with limited English proficiency and requires providers to offer LEP patients a qualified interpreter. In the past, DHHS regulations dating back to 2003 merely required that oral interpreters be “competent.” While “competency require[d] more than self-identification as bilingual” formal certification was not required.”

Under the new draft rule, a “qualified interpreter” is defined as an interpreter who “via a remote interpreting service or an on-site appearance”:

1. Adheres to generally accepted interpreter ethics principles, including client confidentiality;
2. Demonstrates proficiency in speaking and understanding both spoken English and at least one other spoken language; and
3. Is able to interpret effectively, accurately, and impartially, both receptively and expressly, to and from such language(s) and English, using any necessary specialized vocabulary and phraseology.

While the new regulations do not specifically, require the use of certified medical interpreters, that is clearly their implied intent since to be a qualified interpreter one must first have gone through some type of qualification process. The draft regulations underscored this point by stating that: “the fact that an individual who has above average familiarity with speaking or understanding a language other than English does not suffice to make that individual a qualified interpreter for an individual with limited English proficiency.”

• By moving the legal standard from “competent” interpreters to “qualified” interpreters, DHHS is increasing the standard of care and legal duty owed to LEP and Deaf and Hard of Hearing patients and requiring organizations that receive federal funds to bear the financial burden of increasing the professionalism of their language access services.

• The final rule explicitly bans the use of minor children as medical interpreters. Indeed, providers are not only prohibited from relying on minor children as interpreters they are also instructed not to rely on minor children to “facilitate communication” with LEP patients. The only exception to this rule is “an emergency involving an imminent threat to the safety or welfare of an individual or the public where no qualified interpreter is immediately available.”

• The final rule prohibits the use of adult family members and friends as medical interpreters. However, the final regulations allow two exceptions to this general rule. First, adult family members and friends may be used as medical interpreters in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no qualified interpreter is immediately available. (Note: since most leading national telephonic and video remote interpreting companies can make qualified interpreters available in hundreds of languages within seconds, this exception should be regarded as limited.) Second, adult family members and friends may be used as medical interpreters where the LEP person “specifically requests that the accompanying adult interpret or facilitate communication and the accompanying adult agrees to provide such assistance.” However, the rule makes plain that providers are not relieved of their legal duty to provide a qualified medical interpreter where an LEP patient elects to use an adult family member or friend since even then, “reliance on that adult [family member or friend must be] appropriate under the circumstances.”

• The final rule severely restricts bilingual or multilingual staff without formal training in medical interpreting from serving as medical interpreters. The final rule distinguishes between “qualified bilingual/multilingual staff” and untrained bilingual/multilingual staff. According to the final rule, only the former may be used as medical interpreters for LEP patients. Qualified bilingual/multilingual staff is defined as “a member of a [provider’s] workforce who is designated to provide oral language assistance as part of the individual’s current, assigned job responsibilities and who has demonstrated” [emphasis supplied] that he or she:

1. is proficient in speaking and understanding both spoken English and at least one other spoken language, including any necessary specialized vocabulary, terminology, and phraseology, and
2. is able to effectively, accurately, and impartially communicate directly with individuals with limited English proficiency in their primary languages

As the draft version of the regulations noted: “because the definition of a qualified interpreter includes adherence to generally accepted interpreter ethics principles, bilingual or multilingual staff who are competent to communicate directly with individuals with limited English proficiency may not satisfy a requirement to adhere to such principles.” According to the final version of the rules, bilingual staff must not only be qualified to serve as medical interpreters, they must be able to demonstrate their proficiency in doing so.

• The final rule makes it illegal to require an individual with limited English proficiency to provide his or her own interpreter during medical encounters. Further, while LEP patient are not required to accept (free) language access resources offered by providers, it is illegal for providers to “coerce individuals to decline language assistance services.”

• The final rule significantly expands the universe of individuals to whom a legal duty is owed to provide language access services. The new rule does this in two ways. First, the rule imposes a general requirement on providers to “take reasonable steps to provide meaningful access to each individual with limited English proficiency eligible to be served or likely to be encountered in its health programs and activities.” (Emphasis supplied.) Secondly, the final rule adds a specific provision designed to prevent discrimination on the basis of “association”. In practical terms, this means that the duty to provide qualified medical interpreters is not confined to LEP patients but also extends to family members, spouses or same-sex partners of LEP patients who are themselves LEP. Similar non-discrimination provisions apply “by association” to a Deaf or Hard of Hearing family member, spouse or same-sex partner of Deaf and Hard of Hearing patients, thereby guaranteeing them access to qualified ASL interpreters.

• While the final revisions to section 1557 of the ACA provide much support for providers’ use of qualified remote medical interpreters, DHHS also signaled its concerns about the quality and safety aspects of this new technology by setting new standards for providers’ use of video remote interpreters. According to the final rule, “providers who provide a qualified medical interpreter to LEP individuals through video remote interpreting shall provide:”

1. Real-time, full-motion video and audio over a dedicated high-speed, wide bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images or irregular pauses in communication;
2. A sharply delineated image that is large enough to display the interpreter’s face and the participating individual’s face regardless of the individual’s body position;
3. A clear, audible transmission of voices; and
4. Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the video remote interpreting

• Final revisions to section 1557 of the ACA make plain that providers are not only required to provide qualified oral medical interpreters, they are required to provide qualified translators of written translated materials. In the discussion of the rationale for the final changes to the rule, DHHS noted that it had become concerned about providers’ use of untrained translators to translate complex, highly technical medical documents. Accordingly, the final rule requires providers to use translators who:

1. Adhere to generally accepted translator ethics principles, including client confidentiality;
2. Has demonstrated proficiency in writing and understanding both written English and at least one other written non-English language; and
3. Is able to translate effectively, accurately, and impartially to and from such language(s) and English, using any necessary specialized vocabulary, terminology and phraseology.

• Under the final rules, Language Access Plans are not required. However, DHHS makes plain that when evaluating providers’ compliance with sub-section 92.201(a)’s meaningful access requirement, it will consider whether providers’ have “developed and implemented an effective written language access plan that is appropriate to its particular circumstances.” According to DHHS, the language “appropriate to its particular circumstances” is meant to convey that providers’ need to engage in voluntary planning will “vary depending on the entity’s particular health programs and activities, its size, its geographic location, and other factors.”

• Assurances of compliance required. When applying for Federal financial assistance, providers must, as a condition of the application, submit assurances that its health programs and activities will be operated in compliance with Section 1557 of the ACA.

• New private cause of action created that includes national origin discrimination claims by Limited English Proficient patients under Section 1557 of the ACA. In the wake of the U.S. Supreme Court’s decision in the Sandoval case, it was understood that LEP plaintiffs had no private cause of action on language access grounds under Title VI of the Civil Rights Act of 1964. However DHHS has made plain that the final rules to Section 1557 of the ACA finally give LEP plaintiffs a private cause of action under the non-discrimination provisions of the ACA. According to DHHS, “OCR interprets Section 1557 as authorizing a private right of action for claims of disparate impact discrimination on the basis of any of the criteria enumerated in the legislation.” Such criteria include age, race, color, national origin (including LEP), sex, or disability. Compensatory damages are explicitly allowed for statutory violations of Section 1557 of the ACA. Further, DHHS specifically noted that “nothing in Section 1557 changes the laws that otherwise would govern eligibility for attorneys’ fees, including the Civil Rights Attorney’s Fees Award Act of 1976.”

• OCR will consider performing unannounced, onsite reviews of providers compliance with section 1557 of the ACA.

• Designated Employee. Covered entities (providers who receive federal funds from Medicare, Medicaid or SCHIP programs) with at least 15 employees are required to designate at least one employee to carry out certain specified responsibilities under Section 1557 of the ACA.

• Grievance Procedures. Covered entities (providers who receive federal funds from Medicare, Medicaid or SCHIP programs) with at least 15 employees would be required to provide grievance procedures (with appropriate due process standards) to resolve any disputes regarding actions prohibited under Section 1557 of the ACA.

• Public/Patient Notice Requirement. All covered entities will have to take initial and continuing steps to communicate with beneficiaries, enrollees, applicants, and the public about its nondiscrimination policies. Entities must provide a notice encompassing seven factors, including that the entity does not discriminate (on the basis of national origin, immigration, language and disability and other factors) and that it provides appropriate interpreters and auxiliary aids and services, free of charge, to ensure effective communication for individuals who are LEP or have a disability. These notices must include taglines in the top 15 languages spoken nationally. These notices must be included in “significant publications” and posted in “conspicuous physical locations where the entity interacts with the public.” In particular, such notices must be accessible from the organization’s website.

• Mandatory employee training on the new ACA Section 1557 regulations is not required. Although OCR “encourages covered entities to train employees on compliance with Section 1557 periodically, OCR does not believe it is necessary for the final rule to mandate training.  However, to facilitate training that covered entities choose to provide, OCR is preparing and will make available a training curriculum for their use in advance of the effective date of the rule.  OCR also expects to engage in outreach and technical assistance to promote understanding of and compliance with the final rule.

Resources:

• To read an excellent overall review of the nondiscrimination provisions of the ACA and the impact of the (draft) section 1557 rules, see: Nondiscrimination and the ACA, Health Advocate, a publication of the National Health Law Program, September 2015 by Mara Youdelman, J.D. available at:

http://www.healthlaw.org/issues/health-disparities/language-access/Health-Advocate-Nondiscrimination-ACA#.VhfInqUo6po

• To read the DHHS press release announcing the release of the final ACA section 1557 rules, click here: http://www.hhs.gov/about/news/2016/05/13/hhs-finalizes-rule-to-improve-health-equity-under-affordable-care-act.html#

• To review the actual final regulations pertaining to section 1557 of the ACA, use the following link: http://www.hhs.gov/civil-rights/for-individuals/section-1557

• For further information about Critical Measures e-learning program entitled “Language Access and the Law – Caring for the Limited English Proficient Patient” contact David Hunt at Critical Measures at (612) 746-1375 or (612) 558-0028. E-mail: dbhunt@criticalmeasures.net

Nearly twenty years ago the U.S. Census Bureau’s year 2000 census reported almost 47 million people or 18% of the U.S, population spoke a language other than English at home. One study concluded that an estimated 10 million people in the United States are identified as hard of hearing, meaning they have difficulty hearing normal conversations and close to 1 million people are functionally deaf.

Considering these statistics, ensuring effective, meaningful communication between physicians and their patients can be a challenging task. However, good communication is essential to establishing a meaningful physician-patient relationship. In the case of a patient with limited English proficiency or who is hearing impaired, physicians ethically and legally obligated to assess the communication needs of the patient and take steps necessary to allow for effective communication. In many instances, meaningful communication can only be achieved through use of interpretation services.

TranStream Global is providing a new frontier impacting Healthcare reform on a global level.

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Over the last twenty years, the influx of Hispanics into the Midwest and South is creating a language barrier in many communities, forcing changes in how governments provide services and the way businesses attract workers and customers.

In Georgia, advocates say some Latino immigrants get substandard health care because they cannot speak English well and few hospitals have Spanish translators.

In Tennessee, manufacturing and retail employers say they would hire more Hispanic immigrants but cannot adequately train or relay job safety requirements to non-English speakers.

“You have to speak English on the job, so nobody has to be around you to tell you what the boss wants” or translate out of an instruction manual, said Jose Adame of Horn Lake, Miss. He came from Mexico nine years ago for work, but said he was not able to find a steady job as a machine operator until he improved his English.

The Federal Civil Rights Act of 1964 covers discrimination based on foreign language, though it is an aspect of the law that has not been consistently enforced, said Marcela Urrutia, a policy analyst with the Hispanic advocacy group, National Council of La Raza.

An executive order issued in 2000 by the Clinton administration sought to clarify that, ordering federal agencies and organizations receiving federal funds to ensure they have a system that provide services for limited English proficiency residents so they “can have meaningful access to them.”

Most agencies are still trying to comply with the order, Urrutia said. In Michigan and elsewhere, some government agencies now are providing documents in Spanish and crash courses for employees who deal with the public.

“With the growing emergence of Latinos and other immigrants, there has been a growing demand of compliance with the law,” she said.

The 2000 census found 11 percent of U.S. residents age 5 and older, or about 28 million people, spoke Spanish at home, up from 8 percent in 1990, or about 17 million. And among those Spanish-speakers in 2000, roughly half spoke English less than “very well,” about the same percentage as a decade earlier.

But in those states that saw the largest increase in Hispanics, the number of people who spoke English less than very well exploded. For instance, in North Carolina, the number of Spanish-speaking residents nearly quadrupled. The number of Spanish-speakers who spoke English less than very well also increased five fold, while it tripled in Iowa.

Memphis – Tennessee’s largest city – now has over 50,000 Spanish-speaking residents, more than double the number from 2000.

“It’s like something that happened overnight here. Memphis has always been a multicultural city, but we haven’t necessarily been a multilingual city,” said Shelby Mallory of The Work Place, a nonprofit work force development organization for prospective Hispanic workers.

Conversely, calls for an “English-only” culture have been prevalent in recent years as well. The nonprofit group ProEnglish says 26 states have enacted laws making English their official language.

Governments must distinguish between commonsense uses for languages – such as for emergency services – and those that inhibit assimilation, said Mark Kirkorian, executive director of the Center for Immigration Studies, a research group that advocates “fewer immigrants but a warmer welcome for those admitted.”

A report from the federal Office of Management and Budget said it could not accurately estimate costs associated with implementing programs to help residents with limited English skills.

Data was only available for Delaware, New Jersey, New York, Vermont and West Virginia, with figures for other states to be released soon. Those figures show that immigrants who spoke an Asian language tended to know English better than Spanish speakers.

Almost twenty years have passed since the 2000 census and the dilemma still exists with solutions that are highly inadequate. TranStream Global is the Future of healthcare reform in the translations industry

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