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January 2014—Public Health Law News

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In This Edition

Announcements

Call for abstracts for APHA's 142nd Annual Meeting. The American Public Health Association is now accepting abstracts for the 142nd APHA Annual Meeting and Exposition, which will be held November 15–19, 2014. The meeting's theme is Healthography: How Where you Live Affects Your Health and Well-being. Abstracts are due between February 10–14. Find more information about the conference and specific abstract submission deadlines.


Public health law vaccine exemption webinar. The Network for Public Health Law will host a free webinar, Blocked Shots—Examining the Basis, Nature and Public Health Impact of Vaccine Exemption Laws, on Wednesday, February 19, 2014, at 1:00 pm (ET). This webinar will examine the legal and ethical basis for vaccination requirements, review a recent assessment of how non-medical vaccination exemption laws impact the annual incidence rates of vaccine-targeted diseases, and explore how states are changing their vaccine exemption laws. Find more information and register for the webinar.


Job openings with National Indian Health Board. The National Indian Health Board is seeking applicants for three career opportunities at their Washington, D.C. headquarters. The positions are 1) Director of Public Health Programs, 2) Tribal Health Care Reform Program Manager, and 3) Tribal Health Reform Policy and Program Associate. All positions are open until filled. Find more information and apply for the positions.


Policy fellowship opportunity. The Ohio State University Center of Excellence in Regulatory Tobacco Science invites applications from people interested in obtaining a post-graduate research fellowship in tobacco regulatory policy. The two–three-year training program is geared toward participants interested in an academic research career. Individuals with a J.D., Ph.D, or equivalent, preferably with research training in public health, public policy, or other population sciences, may apply. Applications are being accepted and are reviewed on a rolling basis. A position could begin as early as January 1, 2014. Find more information and apply for the fellowship. [PDF 156KB]


2014 Public Health Law Conference. The 2014 Public Health Law Conference will take place October 16–17, 2014, in Atlanta, Georgia. The conference will gather public health and legal experts from across the country to examine and discuss today's critical challenges in public health law. Find more information about the conference and learn how to get the early bird registration rate.

Legal Tools

ERISA issue brief. This issue brief summarizes responses to technical assistance requests PHLP received regarding the Employee Retirement Income Security Act of 1974 (ERISA) and its relationship to health benefit plans and state laws that address health system transformation. Find more information and read the ERISA issue brief.


Revised pool code module available. The Model Aquatic Health Code (MAHC), is a collaborative effort of public health, academia, and industry working to protect individuals, families, and communities from preventable waterborne diseases and injuries through evidence-based guidance. The MAHC's Facility Design and Construction Module has been revised and re-posted after the first public comment period. Find more information and access the revised module.

Top Stories

California: Firms to pay $1.1-billion in long-running lead paint lawsuit

Los Angeles Times   (12/16/2013)   Tony Barboza

On December 16, 2013, Santa Clara County Superior Court Judge James P. Kleinberg found that ConAgra, NL Industries, and Sherwin-Williams were liable for exposing children to a known poison and had created a "public nuisance" by selling lead-based paint for decades before it was banned in 1978.

Of the $1.1 billion judgment, $605 million will be set aside for lead removal in Los Angeles County. The judgment will also create a fund paying for inspections and lead abatement on the inside walls of homes. The fund will be administered by California's Childhood Lead Poisoning Prevention Branch. "The court is convinced there are thousands of California children in the Jurisdictions whose lives can be improved, if not saved through a lead abatement plan," wrote Judge Kleinberg in the ruling.

The judgment is the long-awaited conclusion after thirteen years of litigation. The plaintiffs argued that the defendant firms promoted the use of lead-based paint even though the dangers lead poisoning posed to children had been widely known for decades. The defendants maintained they were ignorant that the levels of lead in their paints were a public health problem until they were taken off the market in 1979.

"The people who are affected are largely poor and minority children who live in old homes that haven't been repaired," said Joseph Cotchett, plaintiffs' attorney in the case.

DuPont and Atlantic Richfield, two other defendants, were not held responsible.

[Editor's note: Find more information about the ruling and read the Santa Clara County Counsel's press release [PDF 73KB].]


National: E-cigarettes'  growing popularity poses danger to kids

USA Today   (01/05/2014)   Laura Ungar

In 2009, the U.S. Food and Drug Administration (FDA) issued a warning that e-cigarettes were being marketed to minors. Reports of e-cigarette poisoning among children have increased as have reports of high school students using e-cigarettes. Currently, the FDA does not ban the sale of e-cigarettes to minors.

E-cigarettes are battery-operated electronic devices that heat liquid nicotine, create nicotine vapor. The nicotine cartridges are often flavored and in addition to more common tobacco flavors, such as menthol, e-cigarettes are also available in bubblegum and cola.

These flavors are being blamed for the rise in e-cigarette-related child poisonings, which are often ingested when children drink from or lick the nicotine cartridges. Poisoning can also result from skin contact alone. The National Poison Data System reported 427 e-cigarette-related poisoning exposures in 2012.

"Kids will eat most anything and since children are not used to consuming nicotine, their symptoms may be more severe at lower levels," said George Rodgers, associate medical director of the Poison Control Center.

E-cigarette manufacturers are working to make the products less dangerous to children. "If you're an adult, it's a matter of choice. But we have to safeguard those who don't have the ability to safeguard themselves," said Ray Story, chief executive officer of the Tobacco Vapor Electronic Cigarette Association. Story also indicated that his organization has advocated for tamper-evident caps and safety packaging.

Briefly Noted

California: Proposed benefits from penny-per-ounce tax on sugar-sweetened beverages
California soda tax would save hundreds of millions in medical costs, study finds
Huffington Post   (01/03/2014)   Lydia O'Connor
[Editor's note: Find more information and read PLOS One's Health Benefits of Reducing Sugar-Sweetened Beverage Intake Among High Risk Populations of California: Results from the Cardiovascular Disease Policy Model.]


Idaho: Mental health commitment cases increased 82% since 2007
Idaho looks at ways to mend mental health system
Idaho Statesman   (01/04/2014)   Brian Smith


Illinois: EMTs may provide advanced life support under new rural ambulance law
New Illinois law will help rural ambulance crews
Daily Herald   (01/04/2014)
[Editor's note: Find more information and read Illinois's Public Act 098-0608.]


Kentucky: State with highest smoking rates in U.S. favors proposed smoking ban law
Statewide public smoking ban favored by two-thirds of Kentuckians in poll
Courier-Journal   (01/02/2014)   Laura Ungar


New Mexico: Prescribing fatal drug doses to terminally ill patients case
New Mexicans advocate for more end of life choices
Albuquerque Journal   (01/06/2014)   Elaine Tassy


Ohio: Judges to report ordering mental-health evaluations for violent offenders
Ohio courts now required to report certain mental health information to law enforcement
The Blade   (01/05/2014)  
[Editor's note: Find more information and read Ohio's Deputy Suzanne Hopper Act.]


Washington: Emergency contraceptive case on hold pending Supreme Court decision
Legal fight over emergency contraceptives drags on
The Olympian   (01/05/2014)  


Wisconsin: Bill would exempt e-cigarettes from public smoking bans
Sen. Glenn Grothman's bill would exempt e-cigarettes from smoking ban
Milwaukee-Wisconsin Journal Sentinel   (01/03/2014)   Patrick Marley
[Editor's note: Find more information and read Senate Bill 440.]


National: Non-physician laser hair removal lawsuits increased by 42%
Laser hair removal's risks
New York Times   (01/06/2013)   Roni Caryn Rabin


National: $760 million settlement proposed in NFL retiree concussion lawsuit
N.F.L. and retirees agree on details of concussion deal
New York Times   (01/06/2013)   Ken Belson and Alan Schwarz

Feature Profile in Public Health Law

Chester Antone

Title: Councilman of the Tohono O’odham Nation Legislature representing the Great Pisinemo District, Chairman of the 2014 Tribal Advisory Committee

Organizations:

Tohono O’odham Legislative Councilman of the Tohono O’odham Nation representing the Great Pisinemo District

Committee Member on the Tohono O’odham Legislative Council’s Committees for Health and Human Services, Human Resources Development and Housing

Chairman of the Centers for Disease Control and Prevention (CDC)/Agency for Toxic Substances and Disease Registry (ATSDR) Tribal Advisory Committee (TAC)

Member of Indian Health Services (IHS) Director’s Tribal Working Group on Tribal Consultation (DTWGTC)

Education: 
Pima Community College, general studies; University of Arizona, Eller College of Business and Public Administration, bachelor of science in public administration

Tribe: Enrolled member of the Tohono O’odham Nation



Public Health Law News (PHLN): What path led you to becoming a member of the Tohono O’odham Legislative Council?

Councilman Antone: When I first came back from Haskell Indian Junior College, now Haskell Indian Nations University, in 1979, I began attending the district meetings and translating for the elders from the Tohono O’odham language to English and from English to the Tohono O’odham language.

The elders began encouraging me to participate in discussions on issues that affect the district as well as the tribe and participate in committees. From 1980–1981, I served on the Community Action Program Committee, which served as oversight to the Community Action Program, which was under the Administration for Native Americans at that time. I represented the Pisinemo District, my district, and the tribe on the political issues of the day, which were becoming more complex. I was asked to sit on the Papago Education Committee during this time also. That was before the Tohono O’odham Nation had written our own constitution and we were known as the Papago Tribe. On the Education Committee, my perspective as a Native American was much different because of my education and traditional cultural background.

I came to aspire to the position that we could control our own destiny through control of our educational system and incorporate our culture and tradition within our system. At that time we were educated under the Bureau of Indian Affairs school system; part of our school system is under what is now called Bureau of Indian Education.

I was first elected to the Tohono O’odham Legislative Council in 1980–1981. I was elected again under the second Tohono O’odham Nation Constitution, which instituted a three-part government, and served from 1991–1995. I attended the University of Arizona earned my degree. After that, I came back and have been serving in the Tohono O’odham Legislature since 1997.

PHLN:What are your duties as a Tohono O’odham Nation Councilman?

Councilman Antone:We are the same as any legislative body proposing and passing laws. There are twelve districts that elect two representatives to serve a four-year term on the Tohono O’odham Legislative Council. These terms are staggered terms, with elections every two years for one seat. The Tohono O’odham Nation occupies three Arizona counties: Maricopa, Pinal, and Pima. I represent my home district of Pisinemo, but I also represent the Nation’s best interests in a collective sense. The district government is more concerned with local matters, but the legislature works with those issues that concern the whole Nation. This is what I mean in the collective sense. In addition to creating legislation, the tribal legislature is also in charge of the tribal budget. Unlike many state legislatures and the National legislature, Legislative Council positions are full-time positions. The first week of every month is a general council meeting and the remaining weeks are reserved for committee meetings. We have thirteen standing committees.

PHLN: Pursuant to Executive Order 13175 [PDF 263KB], all federal agencies must “establish regular and meaningful consultation and collaboration with tribal officials in the development of federal policies that have tribal implications.” Most federal agencies meet this executive order requirement through Tribal Consultation Sessions and the Tribal Advisory Committee (TAC). Given Alaska Native and American Indian tribes’ “nationhood status and inherent powers of self-government,” why is the tribes’ sovereign nation status such a vital and positive aspect of U.S. relations with American Indians and Alaska Natives?

Councilman Antone: In the past, the federal government did recognize the Indian tribes’ inherent status and powers. The U.S. federal government had to work with the tribes individually and recognized that they had inherent governing power. In fact, Native Americans are the only self-governing entities recognized in the U.S. Constitution.

Tribal sovereign nation status is even more important now, given the emphasis on race in government organizations. For example, when tribes asked CDC for a tribal set-aside of funds a few years ago, the response from CDC’s Financial Management Office was that they had to treat everybody equally and could not do so. They did not understand that we are tribal governments. The tribes are constantly educating federal agencies of this fact. It is important that Native Americans are recognized as independent nations with inherent governing powers and should be at the table not only for discussions on issues that directly affect them, but also to contribute to other issues as well. With the recognition by the United States government that we are here and that it required the federal government to negotiate with Indian tribes in making treaties and the like, we need to be at the table now and in the future, having conversations and helping to shape our health and our role. 

PHLN:Why is the TAC an important aspect of tribal sovereignty?

Councilman Antone: The TAC is important because it allows for the free-flow of information and discussion among the federal government and tribal governments about what policies we need to establish or change. It is very important that we get to participate in the exchange of ideas for policies that relate to us.

The TAC, however, does not supplant individual tribal consultation or tribal consultation sessions. The advisory committee provides assistance and support to both the tribes and the federal government in the Tribal Consultation Session. For example, CDC has many tribal specimens—such as blood samples and tissue samples—that were used for research purposes. CDC would like to return these specimens to the tribes. Each tribe may have its own ideas or preferences for how and when the specimens are returned and may voice those preferences in Tribal Consultation Sessions. The Tribal Consultation Committee, on the other hand, will work to negotiate and draft a protocol for returning those specimens in accordance to the wishes of the tribes and CDC’s legal abilities. Even the protocol that is drafted is and may be subject to tribal consultation before it is used.

In addition to issues like the return of Native American specimens, the TAC makes recommendations to CDC on everything from priority in budget to priority in policy. Another example of this is recommendations to CDC regarding pass-through funding. These are CDC funds that are disbursed to states for administration. Largely, tribes are unable to discern what pass-through funds are dedicated to tribes or are used for tribes and whether those funds are being administered properly. In this situation the TAC will discuss a variety of procedures for tracking these funds and ensuring states are held accountable for the funding that is given to them and that it benefits the population which includes the tribes.

PHLN:How is your work as Tohono O’odham Councilman related to the TAC?

Councilman Antone: For one thing, I have an interest in public health and tribal health policy. I currently serve as chairman of the Tohono O’odham Legislative Council Health and Human Services Committee. I’ve been working on tribal public health policy and in this position for the past seven years. I am interested in increasing the standard of health for Native Americans overall. Working with CDC is a natural extension of this interest, because CDC also seeks to improve health overall.

PHLN:As chair of the Tribal Advisory Committee for 2014, what roll will you play in the upcoming 10th Biannual Tribal Consultation Session to be held February 18–19, 2014?

Councilman Antone: In general, I will be moving things along and will take the time to follow up on some issues that are important to Indian Country. As I mentioned briefly before, there is a question about the funding CDC devotes to Indian Country. From CDC’s total budget, what goes to Indian Country?

How are the state pass-through funds related to CDC’s budget and what oversight is given to pass-through funds devoted to tribal use? There is a proposed tool to track funding from CDC to the states that is earmarked for the tribes. Previously, CDC required states to obtain tribal signatures as proof that funds had been appropriately disbursed for tribal use, but it isn’t clear how effective this protocol was or even if it is still in effect. Tribes need an answer on these questions and have been seeking them for some time.

PHLN: What are some of the issues you hope to discuss or address during the February 2014 Tribal Consultation Session?

Councilman Antone: The upcoming meetings will be a fresh start for the TAC and tribal consultation at CDC. Over the last year or so, there have been many activities and changes that affect Indian Country, but the TAC and tribes have not always been fully informed. The updated Tribal Consultation Policy was sent out for tribal comment, but the process was lengthy and saw many delays before the Policy was finalized almost a year later, three years after its expiration. The TAC Charter was updated to make sure it complies with the Unfunded Mandates Reform Act exemption to the Federal Advisory Committee Act and upholds the government-to-government relationship. As a result, CDC had to make administrative corrections to the TAC membership to comply with these federal laws. There were also changes to the Tribal Support Unit’s leadership; the TAC was informed when the public announcement was made. Open communication with the TAC and tribes is critical to upholding the government-to-government relationship. CDC is focused on correcting these past issues and ensuring that the TAC and tribes are fully engaged moving forward. I look forward to working together with CDC to rebuild the TAC, address concerns, ensure corrective action, and strengthen tribal consultation as we move forward.

I hope to discuss the future of tribal relations with CDC, and a lot of that depends on gaining a future financial picture. The rest of it, based on that knowledge, enables us to have some idea of what the future holds and whether we need to aggressively pursue funds allocation or policy changes or use CDC’s pockets of expertise in a more efficient way.  Gaining CDC’s commitment to Indian Country is foremost and this is what would enable continued resources to be devoted to Indian Country. We need to find out whether CDC has specific resources to assist tribes as tribes head toward the development of their own public health authorities and begin to create their own independent healthcare systems and health departments and continue to move toward self-governance, or to contract more health programs under Indian Self-Determination and Education and Assistance Act 93-638 contracts. Some tribes are also under IHS and may choose to remain so, but perhaps they may be interested in monitoring for quality health service. There is as vast an array of tribal health services as there are tribes.

I also hope to discuss fetal alcohol spectrum disorders (FASD). We need to know more about the developmental issues with those disorders, what they are, and how can we prepare for that in the future. For example, without a FASD diagnosis, insurance often won’t pay for treatment. Recently, I received information from the U.S. Health and Human Services Office of Minority Health regarding billing codes and medical diagnosis to help provide services and medical care to children with these issues. This was another avenue to pursue which yielded some results. This issue would require multiple efforts from multiple organizations and tribal support.

PHLN: Do you have any specific goals or hopes for your term as the 2014 TAC Chairman? If so, will you please describe them?

Councilman Antone: First, I hope to have a full Tribal Advisory Committee at some point within this year. At the moment, we have nominations but not a full committee. If we don’t have a full committee, we will continue to search for additional members, and we hope to have full meeting later in the year. We will go on with the February meeting, regardless. Our charter and consultation policy are in place, and now we’re just putting ourselves together.  

I hope to implement the proposed engagement plan for tracking requests from tribes to CDC. Previously, this idea was called the ”tracking tool,” and was meant consolidate and track requests from tribes to CDC. This issue rises to the top because one of the main concerns is that there are no responses from CDC on tribal testimony given at previous consultations from tribes. This tracking tool, or tribal engagement plan, is to track CDC’s responses to tribal testimony and requests. Tribes have not received much-needed responses. We’re going to discuss the issue. We need to fill in the blanks getting it moving and interact with CDC as much as possible to help get meaningful responses to tribal requests.

I also hope to discuss how we can monitor our progress with CDC and tribal interests. We need to ensure CDC engages tribes on how and what CDC can do. I hope this monitoring would be compiled largely from responses in the engagement plan.

PHLN: How do the TAC and Tribal Consultation Sessions support tribal public health and public health law?

Councilman Antone: One of the ways that Tribal Consultations and the TAC support tribal public health and public health law is through the discussion of issues that tribes may have with CDC that are of a public health issue or that may fall into the public health law realm. These may sometimes have an educational component to it that CDC may have a resource for, such as technical expertise. For example, through information discussed and presented in a TAC meeting, we, the Tohono O’odham Nation received information about judicial training in public health law, and CDC was able to hold a seminar in the Tucson Area for tribal judges.

We also received information and resources that can help to train lab technicians in IHS so that lab work could be done in IHS hospitals instead of being sent out for analysis. CDC has pockets of expertise that are not very well known in tribal communities, but that provide additional expertise in public health. Tribal consultation sessions lead to information that may lead to benefits in public health and public health law, like food safety, injury, and healthy aging at risk surveys—information we can use to improve tribal public health.

In tribal consultations, we find out what different tribes need, and then we can look into programs that would support those needs. Sometimes the need isn’t about funding, but about policy change. Direct funding has always been at the forefront of tribal need. It takes a policy change and possibly a legislative change, but how are you going to know that without a response?

PHLN: Under the Indian Self-Determination and Education and Assistance Act (the Act), American Indians and Alaska Natives are entitled to self-administer programs that were formerly administered by the United States Public Health Services, IHS. How has self-determination been received and administered by the Tohono O’odham Nation with regard to public health?

Councilman Antone: I think self-determination has done a lot. It allows tribes to self-contract what were once services administered by the federal government, like behavioral health services, Special Diabetes Program for Indians, cardiovascular disease, HIV/AIDS, and community health. Contracts under the Act are referred to as 93-683 contracts because that’s the Act’s public law number. We’ve done a lot of 93-638 contracts that were previously administered by the Bureau of Indian Affairs, and we’ve contracted programs that were previously administered by IHS. It benefits in a public health way because when you put together so many programs that deal with health, it leads to better health overall, which is what I think public health really is. It also affords tribes much flexibility, but you have to negotiate your terms.

PHLN: If you weren’t working in public health law and policy, specifically as Councilman to the Tohono O’odham Nation and the TAC, what would you likely be doing?

Councilman Antone: I’d probably be working in the behavior health field or pursuing a master’s degree in public administration. Aside from that, I really don’t know.

PHLN: Describe any personal information, hobbies, or interests you care to share.

Councilman Antone: I like to take walks, but I haven’t done that in a while. I enjoy music, good conversation over dinner, and visiting with relatives.

PHLN: Have you read any good books lately?

Councilman Antone: Not lately, just work-related stuff.

PHLN: Is there anything else you'd like to add?

Councilman Antone: I hope for a good year and a new beginning with the Tribal Advisory Committee.

Public Health Law News Quiz

The first reader to correctly answer the Quiz question will be given a mini-public health law profile in the July 2014 edition of the News. Entries should be emailed to PHLawProgram@cdc.gov with “PHL Quiz” as the subject heading. Entries without the heading will not be considered. Good luck!  


Public Health Law News Quiz Question: January 2014

Who was quoted in the September 2013 Public Health Law News Quotation of the Month?

Public Health Law News Quiz Question December 2013 Winner!

Samantha Harrykissoon


Winning response to the December 2013 Public Health Law News Quiz: Survey Finds Public Support for Legal Interventions Directed at Health Behavior To Fight Noncommunicable Disease

Employment organization and job title: CDC, Office of the Associate Director for Policy, Policy Research, Analysis and Development Office. Public Health Analyst (Policy)

Education: J.D., Georgia State University College of Law; M.P.H., University of Texas Health Science Center, and B.A. (biology), The University of Texas at Austin

Favorite section of the News: I enjoy reading the Public Health Law News and have subscribed to the newsletter from the beginning. Because I don't have the time to keep with all public health law news I like to review the Briefly Noted sections which provides an overview of relevant and current issues. The Quotation of the Month is also a nice touch, and I hope the quiz section returns on a permanent basis.

Why you are interested in public health law? Since I obtained my MPH and worked in the public health arena first, I had a good understanding of public health principals before obtaining my J.D. While in law school, I knew that I wanted to find a way to combine my public health and legal background and focused my efforts on taking as many health-related courses as I could. In public health we focus on developing tools and I believe that law is an essential public health tool that plays a critical role in reducing illness and premature death. I think public health can better capitalize on using the law to improve the health of the general population. At CDC, we have the Law and Science Advisory Group (LawSAG) that is open to all those interested in the intersection of law and science and improving the understanding and use of law as a public health tool.

Hobbies/interests: I enjoy traveling and will be going to Thailand later this month. I also spend a lot of time serving on the Board of Directors for a local non-profit that dedicated to ending violence and oppression in immigrant and refugee communities in Atlanta.

Recently read or favorite books: A favorite book is The Shadow of the Wind, a novel set in post–war Barcelona by Spanish writer Carlos Ruiz Zafón.

Court Opinions

California: Court has authority to deny out patient treatment to patient-convict
The People v. Christopher
Court of Appeals of California, Fourth District, Division Two
Case No. E053885
Decided 12/26/2013
Opinion by Justice Betty Ann Richli


California: State medical marijuana law does not preempt local bans
Modiano v. City of Anaheim, Cal. [PDF 53KB]
Court of Appeals of California, Fourth District, Division Three
Case No. G048303
Filed 12/30/2013
Opinion by Justice Richard M. Aronson


New York: City's red light camera program supports clear government interest
Kreiger v. City of Rochester
Supreme Court, Monroe County
Case No. 13/06121
Decided 11/01/2013
Opinion by Judge J. Scott Odorisi


Ohio: Lead contamination records which are not medical records must be released
Bd. Of Health of Cuyahoga County v. Lipson O'Shea Legal Group
Court of Appeals of Ohio, Eighth District, Cuyahoga County
Case No. 99832
Released 12/26/2013
Opinion by Judge Larry A Jones, Sr.


Washington: Hospice provider met need requirements for permit
Hospice of Spokane v. Washington State Department of Health
Court of Appeals of Washington, Division Three
Case No. 3116-3-III
Filed 12/19/2013
Opinion by Justice Teresa C. Kulik

Quotation of the Month

National Alliance on Mental Illness in report, State Mental Health Cuts, A National Crisis

"Unfortunately, the public often focuses on mental illness only when high-visibility tragedies of the magnitude of Tucson or Virginia Tech occur. However, less visible tragedies take place every day in our communities—suicides, homelessness, arrests, incarceration, school dropouts, and more," wrote the Nation Alliance on Mental Illness in its 2011 report, State Mental Health Cuts, A National Crisis.

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