The Importance of Privacy

Privacy is something we all value. Especially with new discoveries in the link between good oral hygiene and overall medical health, it should not come as a surprise to anyone that dentistry patients want to ensure more than ever that their personal information will not be shared with anyone without a legitimate need to know.  Under the US Department of Health and Human Services (, HIPAA Rules were created to ensure that all healthcare professionals respect and protect a patient’s privacy.   How well does your office comply with HIPAA guidelines?


The Health Insurance Portability and Accountability Act (HIPAA) became law in 1996.  HIPAA provides federal protections for personal health information held by patients. The HIPAA privacy rule does permit the disclosure of personal health information needed for patient care and other important purposes related to a patient’s care.  The Security Rule under HIPAA specifies a series of administrative, physical, and technical safeguards or security measures required for covered entities (dental offices that transmit patient information in electronic form) to assure the confidentiality, integrity, and availability of electronic protected health information. 

The Privacy Rule establishes a federal requirement that dentists and other medical practitioners obtain patient consent before using or disclosing a patient’s personal health information for treatment, payment, or healthcare operations. 

Private health information, also known as PHI, is any information relating to a patient’s health, treatment, or payment for healthcare that identifies a patient.  Private health information includes, but is not limited to: names, addresses, phone numbers, fax numbers, e-mail addresses, credit card information, certificate numbers, license numbers, account numbers and birth dates. Many dental employees, including dental assistants, dental hygienists, lab technicians and front office staff, may come into contact with PHI.  PHI should be carefully secured and traced throughout the dental office. 

Although compliance ismandatory only for “covered entities”, the American Dental Association suggests that dentists who are not covered entities adopt the same privacy practices. It is still possible that the HIPAA privacy laws may establish an industry standard among dental practices and failure to comply with the industry standard may result in liability.

How is PHI stored in our office?  Who is authorized to access the information?  How is the information stored and how is it secured?  How and when is this information destroyed?  Where in the office is it appropriate to discuss personal health information?   Do we have an adequate and recorded procedure for training?

Answers to these questions cannot be left to interpretation; healthcare providers must adopt privacy procedures for their offices, ensuring that patient records are kept in a secure space and that employees are trained on privacy policies, making records inaccessible to those who do not have a legitimate need to view them. Most of the information gathered on patients requires these security measures.  Thus, the entire dental office must be aware and held responsible to avoid costly violations. 

HIPAA Violations

Failure to comply with HIPAA can result in both civil and criminal penalties.  These penalties vary based on the nature of the violation and the extent of the resulting harm.  Healthcare entities and individuals who obtain or disclose individually identifiable health information face a penalty ranging from $100 to $50,000 per violation, as well as imprisonment up to one year.  However, offenses committed with intent to use the information for personal gain, harm, or commercial advantage face a more serious fine of $250,000 and imprisonment for up to ten years.  Also, if a state has privacy laws more stringent than the federal regulations, the state laws will supersede HIPAA.

It is important to note that not only are employers held liable – employees who knowingly violate a HIPAA rule may be subject to a criminal penalty as well.

Dental Advertising

Dentists have a right to promote their practices through various forms of advertising. However, ethical guidelines regarding advertising must followed. Section 5 of the American Dental Association’s Principles of Ethics and Code of Professional Conduct sets forth certain standards in part by stating that no dentist shall advertise or solicit patients in any form of communication in a manner that is false or misleading in any “material” respect.

This standard has been implemented in order to protect the general public from false and misleading advertising that may induce a patient to seek dental services from a particular office. Although some states may not have adopted Section 5 of the ADA’s Principles of Ethics and Code of Professional Conduct, Section 5 sets forth a good guideline that all dentists should follow. The fundamental issue in dental advertising is whether the advertisement is false or misleading in any material aspect.

The first step to ensuring compliance with ethical advertising is to understand advertising regulations, standards and the law. With a proper understanding, dentists will be able to market their practices and also avoid legal problems associated with perceived false or misleading advertising. Some dentist practices have already began to implement these legal strategies, Columbia Dental has been known to be one of the first to follow the new published regulations.

Rules that govern the marketing of businesses [including dental practices] are generally enacted by the Federal Trade Commission. There are various forms of marketing, such as advertising in magazines, newspapers, billboards, Vinyl Banners, on the internet, radio, or even television. The Federal Trade Commission is constantly monitoring advertisements, which includes dental advertising.

Dental advertisements must be truthful and non-deceptive. For an advertisement to be completely truthful, it must have evidence to back up each assertion of fact. An advertisement is non-deceptive if it is not likely to mislead a reasonable consumer and does not omit any necessary information for the consumer to make an informed decision regarding whether to obtain services at a specified dental practice. Regardless of the claim, all material information must be disclosed in a manner that a reasonable consumer could understand. Disclosures, if typed, should be in a size large enough for a consumer to clearly read, and failure to comply with this requirement may result in the disclosure being deemed inadequate. Furthermore, an asterisk or other symbol should be used to call attention to the disclosure, especially if the disclosure is placed at the bottom of the advertisement.

In order to determine if an advertisement may be of a concern to the Federal Trade Commission, the advertisement must be considered in its entirety. Even if all of the statements in the advertisement are true, but the pictures are deceptive, then the advertisement may violate the Federal Trade Commission’s advertising standards [and the advertisement may also violate the guidelines set forth by a particular state dental board or state law]. Also, the advertisement should not imply something other than what the advertisement is intending to communicate.

Advertisements that incorporate statistics must be accurate. If a dental advertisement is using statistics, then there must be accurate data to back up the advertising assertion. The Federal Trade Commission requires dental claims regarding consumer health to be supported by reliable scientific evidence and medical data. This evidence may include research, studies, tests, and analysis, which are conducted by dental experts and professionals in an objective manner

Obviously, non-factual, silly claims or jokes contained in a dental advertisement which no reasonable person could possibly regard as harmful will not be considered false and misleading.

The Federal Trade Commission has extensively regulated claims such as price reductions. Dentists should be aware of the relevant standards for this type of advertising. First, if a former price is specified in an advertisement, the price must be the actual price of the goods or services offered for a reasonably substantial amount of time, and on a regular basis. If a former price is not specified, and a sale price is announced, the sale price must be such that a reasonable person with knowledge of the former price would regard the goods or services as a legitimate savings.

Next, if a specific dental advertisement compares the prices of one dental practice to another [yes, this actually does occur], then the competitor’s prices that are listed in the advertisement “must” be the actual prices charged by the competing dental practice. Falsely stating the price of services for a competing dental practice in an advertisement is considered misleading and deception advertising.

Obviously, truthful advertising is important to both the American Dental Association and to Federal Trade Commission. All states have laws that prohibit false, deceptive or misleading dental advertising. If a dentist violates certain rules and regulations regarding the prohibition of false and deceptive advertising, then the violation could result in a fine, injunction, censure, suspension or revocation of a dentist’s license. Clearly, dentists who advertise must comply with the Federal Trade Commission, and each dentist must also comply with their own state law [and dental board requirements ]regarding advertising.

With the explosion of the internet, many state dental boards are taking an “active” role in monitoring dental advertising on the internet. A growing area of concern regarding advertising on the internet is that dentists are claiming they are specialists in areas that are not considered or recognized as specialty areas. For example, if a particular state dental board does not recognize cosmetic dentistry as an area of specialty, and a dentist advertises on the internet that they are a “specialist” in the area of “cosmetic dentistry”, then that particular state dental board may consider the advertisement as false and misleading, which could result in disciplinary sanctions against that particular dental practice. This is something to consider when you are pursuing seo for dentists for your website, to ensure you are remaining legal.

Speaking of, are you looking to grow your dental practice? If so, you might want to consider using some innovative digital marketing strategies such as SEO. To learn more about standing out from the competition in search engine rankings, take a look at this guide to SEO for Dentists.

Also, “buffing” ones credentials on the interest [or any other form of advertisement] may be considered a violation of certain advertising rules as set forth by a particular state dental board. If a dentist claims that they are a “nationally recognized expert in implant dentistry”, the advertisement may be concerned deceptive advertising.

The rule of thumb for dental advertising is that a dentist must be fully aware of their own state regulations regarding advertising, and every dentist should review the guidelines as set forth by the American Dental Association, even if a particular state has not adopted the ADA’s guidelines.

Simple Estate Planning for Dentists

Statistically, seventy percent (70%) of all dentists will die without a Will, and that number could be higher for dentists who fail to implement tax saving strategies during their lifetime. A failure to plan could directly affect the amount of estate taxes your estate may be required to pay to the IRS, and the amount of taxes you may be required to personally pay on a yearly basis. In some cases, estate taxes may be substantial.

Outlined below is essential estate planning and tax information you need to know today, so you can plan for tomorrow.

  1. Make a Will. You should state precisely who will receive your property at the time of your death [i.e. spouse, children, etc.]. If you have minor children you should appoint a guardian for your children. By preparing a Will, you not only plan for the distribution of your property, but you also plan for your children’s future.
  2. Consider a trust. There are two kinds of trusts, an Irrevocable Trust and a Living Trust. An Irrevocable Trust may be used for a variety of reasons, such as to avoid potential estate taxes, as well as asset protection. If you need to Buy a million dollar life insurance policy, one of the easiest ways to avoid estate taxes on your life insurance proceeds is to establish an Irrevocable Life Insurance Trust [ILET]. A properly prepared life insurance trust may protect your life insurance proceeds from estate taxes. It is worth talking to someone like PolicyMe about your options. A living trust is used to control your property while you are living, and also to avoid probate.
  3. Make health care directives. By creating a healthcare directive, you will be able to set forth in writing your healthcare wishes and intentions. Unless you outline in writing your healthcare wishes and intentions [life support, coma, vegetative state], someone other than a loved one may be forced to make life and death decisions for you and get multiple quotes of different insurance companies.
  4. Make financial power of attorney. A general power of attorney will allow you to appoint a trusted person to handle your finances if you are unable to do so yourself. This is completed using the lasting power of attorney forms that are required by the local authorities. If you become incapacitated or disabled, who has the authority to handle the day to day operations of your dental practice?
  5. Protect your children’s property. If you have minor children, you should appoint a trustee in your Will [or Trust] to handle the disposition of your children’s property in the event of your death. If you fail to plan, your children may receive a substantial amount of property [land, dental practice, etc.] when they turn 18 years old. How long would $500,000.00 last in the hands of an 18 or 20-year-old? Your Will [or Trust] should state what age(s) you wish your children to receive their property (21, 25, 30, etc.)
  6. File beneficiary forms. If you have a bank account or investment account, you may be able to designate a beneficiary for those accounts. Many bank and investment accounts are “pay on death accounts”, which will allow the funds in such accounts to be paid directly to your designated beneficiary. In most cases, “pay on death accounts” are excluded from the probate process.
  7. Consider life insurance. If you have substantial assets (home, investments, dental practice), you must have life insurance. However, in order to avoid estate taxes (which may be as high as 51% of your estate), you should consider establishing an Irrevocable Life Insurance Trust. If you are considering purchasing life insurance you’re going to be wanting to look into what the best policy could be for you.
  8. Understand estate taxes. If you have accumulated any type of assets whatsoever [house, bank account, investments, life insurance and especially a dental practice], you must take the necessary steps in order to reduce your estate taxes. You have worked hard all of your life, and if you fail to plan, your family may lose everything.
  9. Protect your business. If you are the sole owner of a dental practice or have a partner, you must have a business succession plan. A succession plan should specifically outline what happens to your dental practice or your ownership interest in the dental practice at the time of your death. If you have a partner, you must have a Shareholder’s Agreement.
  10. Store your documents. In order to ensure a smooth estate planning transition, the following records should be easily accessible: Will, Trusts, Insurance policies, Real estate deeds, Certificates for stocks, bonds, annuities, Information on bank accounts, mutual funds, and safe deposit boxes, Information on retirement plans, 401(k) accounts, or IRAs, Information on debts: credit cards, mortgages and loans, utilities, and unpaid taxes.

As the owner of a dental practice, you constantly deal with the day to day pressure [accounts receivable, employee problems, marketing, patients, etc.]. In the rough and tumble world of dental practice management, don’t forget to manage your own estate.

Hiring and Retention of Employees

One of the fastest areas of liability exposure for the dental profession is the negligent hiring and retention of employees.

If an owner of a dental practice fails to conduct a due diligence investigation of a potential employee prior to hiring that particular employee, better understanding of how to manage small business can help to mitigate this eventuality but if not, then the owner of the practice may be held liable for the negligent or intentional acts of that particular employee.

Prior to hiring an employee, the owner of a dental practice should conduct a due diligence investigation, which should include the following:

1. Performing a criminal background check. There are a number of providers to choose from when it comes to these, for example the afp police check is an option that gives you a really thorough overview of a person’s criminal history, if they have one.

2. Reviewing the driving history of a potential employee;

In general, negligent hiring is based upon the principle that an owner of a dental practice has an obligation to protect not only the employees, but also the patients. It would be a good idea to use services similar to ClearStar to carry out these employment checks.

If the owner of a dental practice fails to conduct a criminal background check on a new or existing employee, and that particular employee commits some type of criminal act against a patient [i.e., improper touching, credit card fraud, etc.], then the owner of the practice may be held liable.

A growing area of potential liability for the owner of a dental practice is the negligent retention of an employee.

If the owner of the practice discovers that an employee has committed a negligent or criminal act while employed at the practice, and the owner of the practice fails to take appropriate disciplinary action against that particular employee, the owner of the practice may be liable if the employee commits a subsequent act.

[Example: The retention of an employee after it is discovered that the employee improperly charged a patients credit card for personal use, or an employee had prior misconduct with a patient].

In today’s society, security is a big concern, especially in the area of domestic violence. The owner of a dental practice may have a certain legal obligation to protect his/her office staff and patients from potential danger.

If an employee is being harassed at work, either by a spouse, significant other, friend, etc., then the owner of the practice should make sure the harassment does not interfere with office operations, or place employees or patients at risk. For example, if a very heated verbal altercation occurs during office hours between an office employee and his or her spouse as a result of a pending divorce, the owner of the practice should immediately address any potential security concerns.

With a little due diligence and the implementation of proper office procedures, the owner of a dental practice should be able to avoid a great deal of liability exposure.

Informed Consent and the Minor Patient

All dentists should be aware that as a general rule, an unemancipated minor’s consent to treatment is not valid. The consent of a parent or legal guardian must be obtained before treatment is rendered. Unfortunately, many  dentists still provide “routine” dental treatment to their minor patients without obtaining informed consent from the parent or legal guardian of a minor child.

The informed consent process should be a complete and thorough discussion between the dentist and the patient – and the parent of a minor child – as to what procedures will be taking place, including, but not limited to, extractions, root canals, crown and bridge, implants, and incision and drainage. A written informed consent form should be obtained before treatment starts, including any  procedure involving flap reflection, cosmetic dentistry, TMD treatment, orthodontics and IV sedation or general anesthesia.

The informed consent process should include a discussion between the dentist (not just a staff member) and the patient about the nature of the treatment, potential risks and complications, likely benefits, prognosis, alternatives (including referral to a specialist when appropriate), timing and estimated fees.

The informed consent process does not necessarily have to be as detailed for routine diagnostic and treatment measures. However, the patient must be advised about all of the treatment and diagnostic procedures with respect to the proposed dental care, including what is to be done and why. The patient does have a right to refuse even the most routine treatment.

In the case of an unemancipated minor child who is unaccompanied by a parent or legal guardian to your office, you should take a few steps to minimize a potential conflict and reduce your liability exposure.

First, make a professional judgment as to whether any delay in treatment will likely be detrimental to the minor patient’s dental or systemic health. Ask yourself whether it is in the patient’s best interest to proceed with the treatment immediately, or whether treatment can wait until a parent or legal guardian can be contacted.

Next, make a reasonable effort to contact the parent or legal guardian. The patients chart should be updated with cell phone numbers.

A patient’s dental record should contain detailed documentation regarding all of the times you attempted to contact the patient’s parent or legal guardian.

However, if you cannot reach a parent or guardian, it may be prudent to defer routine treatment unless an emergency exists, until you can obtain a parent or guardian’s informed consent.

The verbal consent or signature on a consent form from the parents of a minor child should be sufficient. However, it is essential that the parent granting consent is legally authorized to do so. Divorces can often be highly contentious, to the point where some divorce decrees have stipulated that a non-custodial parent cannot make medical decisions. If a parent has no parental rights, then that parent  is precluded from granting consent on behalf of his or her minor child.

If an unaccompanied minor child comes for an appointment for simple or routine treatment that has already been discussed and consented to by the parent or guardian, it should be permissible to proceed with treatment. However, be very careful that you do not perform any treatment whatsoever outside of the prior consent.

Finally, I would suggest that all adult patients and parents or guardians of all minor children be required to sign an “Admission to the Practice Agreement.” This document provides for, among other things, the consent of the patient (or the patient’s parent or legal guardian) to routine dental procedures, as well as treatment and diagnostic tests, including x-rays, that are deemed necessary in the dentist’s professional judgment. If a conflict arises later, the signature of the parent or legal guardian on such a document will, at a minimum, demonstrate that implied consent was granted by the parent or legal guardian for  routine dental procedures for the minor patient.

Disaster Proof Your Veterinary Practice

Every veterinary practice is vulnerable to natural disasters such as fires, floods, and tornadoes. However, advance preparation can minimize your exposure in several ways. For example:

Physical Assets
Buildings, equipment, furniture, inventories, and supplies should all be protected by adequate property and casualty insurance. Be sure to review each policy for “named perils,” which are the disasters covered (such as floods or earthquakes). If your location is prone to one of the “perils” not listed, consider expanding your coverage or buying an additional policy to include it.

Business interruption insurance will reimburse you for lost profits, which will be computed from your financial records. Your policy should allow a realistic time period for recovery, even if it costs a little more.

Missing records can cause a host of problems, including making it hard to quantify your disaster losses. Duplicates of financial statements, patient lists, asset inventories, and other important data should be maintained in a secure off-site location and updated regularly. Important on-site documents should be stored in a fire-proof safe or vault.

Critical computer data should be duplicated regularly on portable hard drives or other storage media. Updated copies should be stored off-site. If data is lost there should be a provision in place to restore it, such as contacting a firm that handles western digital data recovery for instance.

Consider buying “extra expense” insurance to cover relocation costs for a quick post-disaster recovery. Also, you should identify alternative sources of operating assets (such as furniture and equipment lessors), and investigate other possible practice locations. Look into government disaster relief programs available to businesses in general and veterinarians in particular.

Managing Exposure After a Security Breach of Patient Information

If a security breach occurs in a dental practice, the practice owner must take the necessary steps in order to comply with federal law, in order to avoid a potential increase in liability exposure. 

Rules Requiring Patient Notification of a Security Breach

The U.S. Department of Health and Human Services (HHS) has issued strict regulatory guidelines that dental practice owners must follow in the event of a security breach. The Federal Trade Commission (FTC) has also issued breach notification regulatory requirements that dental practice owners must comply with, in the event of a security breach.

Breach Notification Requirements

Depending on the type of security breach and the extent of the breach, a dental practice owner must notify affected patients, the Secretary of HHS and the FTC [if applicable], and, in certain circumstances, the media.


If you are not familiar with the 2009 American Recovery and Reinvestment Act and the 2009 HITECH Act, your dental practice is probably not in HIPAA compliance. In fact, statistically, 85% of all dental practices are not in HIPAA Compliance.

Dental practices that have experienced a breach of patient protected health care information can significantly limit their legal exposure by complying with simple regulatory guidelines.

Securing Your Child’s Financial Future

According to a recent survey, many parents with special needs children have not secured their child’s financial future. Statistically, 66% of parents do not expect their child with special needs to be financially independent, and 68% of parents with special needs children do not have a will.  Estate planning is essential for parents with special needs children. Outlined below are five simple steps that will help you plan for your child’s future:

  1. Children with special needs should not be a “direct beneficiary” of a will or trust [they may be disqualified from receiving federal and state aid].
  2. A special needs trust should be established in order to make sure that certain designated money or property will be used for your child’s best interest. 
  3. In many cases, a legal guardian should be appointed for any special needs child that turns 18 years old. Once a child turns 18 years old, they are considered an adult.
  4. A special needs trust should be established in order to protect your child’s eligibility for state and federal aid. 
  5. With proper planning, a life insurance policy can ensure your child will be financially secure. A gift of money or property to a child with special needs should go directly to that child’s special needs trust. If a child with special needs is the direct beneficiary of any type of money or property, they may become ineligible for state or federal benefits.

With proper estate planning, you can secure your child’s future. For more information on special needs trusts, please contact us.

Success in Buying or Selling Your Practice

The purchase and sale of a veterinary practice are two extremely significant events in a veterinarian’s career.  Finding the perfect practice to purchase or the perfect buyer is very important.  However, the failure to properly draft a purchase and sale agreement has detrimental consequences.

Letter of intent

In general, just about every practice transaction [with or without a broker] should start with a signed letter of intent. The letter of intent memorializes the agreement between the parties regarding the purchase price, date of the proposed sale of the practice, accounts receivables, as well as lease issues.  The letter of intent should also be non-binding.

The seller and buyer of a veterinary practice should keep the letter of intent confidential, regardless of the outcome whether or not the sale of the practice takes place. The seller of a practice should also have a potential buyer sign a non-disclosure agreement, which will keep the seller’s financial and practice information confidential. 

Allocation of purchase price

As a general rule, most practice transactions involve the sale of practice assets (equipment, supplies, etc.) It is extremely important that the seller and buyer establish a purchase price allocation for: (1) equipment that is being sold; (2) account receivables that are being purchased; (3) goodwill of the practice; and (4) non-compete stipulations.  From a tax standpoint, expensing, depreciating, or amortizing the assets are important to the seller and buyer.  Certain tax rules apply regarding what can and can not be depreciated over time.


For the protection of the seller and buyer, a contract for the purchase of a practice should have an outline of events that must occur before the sale takes place.  For example, the buyer must agree to the terms of the seller’s lease agreement [which the buyer will probably be assuming], or the buyer’s accountant should approve the seller’s financial records, and the sale should be contingent of the buyer’s approval of the loan amount.   The buyer should also make sure that any liens [i.e. UCC-1] that are attached to the seller’s assets will be paid at closing.

Non-compete clause

Just about every practice sale agreement should have a non-compete clause that applies to the seller.  The non-compete clause restricts the seller from practicing for a reasonable period of time and within a reasonable geographic radius of the practice.

Careful consideration should be taken when including a non-compete clause.  The non-compete clause should take in to account that the seller may become a part-time associate, partner, shareholder, director, officer, consultant, employee or independent contractor of another practice.

If the practice sale contemplates that the seller will work part time for the buyer, the buyer should require that the seller enter in to some type of Host-Provider Agreement [i.e. independent contractor agreement], which should become effective from the date the practice is sold.

The sale of a veterinary practice can be extremely rewarding for the seller and buyer.  However, if the terms and conditions of the practice sale are not clearly outlined, then it can be a very frustrating transaction for all parties involved.  Before entering in to a contract for the sale of a practice, the seller and buyer should seek the assistance of professionals who are experienced in the area of veterinary transactions.

The ADA Practical Guide to Creating an Employee Office Manual

In the last few weeks, we have received more and more questions as to what additional provisions should be included in an Employee Manual, over and above the “standard” provisions. Not all employees need to know how to be in ACA Compliance but if it gives them a better understanding of how the company operates, there is no harm in letting them know. As a result, outlined below are certain provisions which should be included in every Employee Manual.

Employee Recruitment: This provision should include where to advertise for employees, how to write job advertisements, how to prepare effective job descriptions, proper interview techniques, as well as sample interview questions.

Office Policies: This provision should focus on establishing office policies and procedures in order to introduce new staff to your practice, as well as provide ground-rules and practice philosophy.

Employment Policies: With this provision, you should establish guidelines for personal appearance, sexual harassment, and substance abuse. In addition, an employee manual should also outline the use of cell phones and social media within the practice and outside of the practice.

Employee Training: Your office manual should establish employee training techniques from OSHA and HIPAA, where mandatory.

Employee Benefits: Every employee manual should address vacation, sick time, other leave policies, health insurance coverage, and retirement plans.

Employee Management: This provision should set forth employee management guidelines in order to promote positive office morale, employee appreciation and incentive programs, bonuses, performance-based raises, and performance evaluations.

Employee Termination: This provision should focus on the delicate but important issue of employee termination procedures. Failure to address employee termination in the proper manner could open a practice owner up to certain violations of state and federal law.

Patient Management: This provision should set forth guidelines for employees to promote positive relations with special needs, pediatric, geriatric, and difficult patients through confident communication skills.

Workplace Safety and Security: Your office manual should examine safety and security in the workplace, including complying with OSHA standards, as well as handling emergencies and natural disasters.

By evaluating your Employee Manual and implementing a few additional provisions, a practice owner may avoid a wide range of employment law problems.

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