Worse for Care: When Elder Homes Stumble, Frail Vermonters Get Hurt | Eldercare | Seven Days | Vermont's Independent Voice

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Worse for Care: When Elder Homes Stumble, Frail Vermonters Get Hurt

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June (left) and Mary Kelly with a photo of their mother, Marilyn Kelly - JAMES BUCK
  • James Buck
  • June (left) and Mary Kelly with a photo of their mother, Marilyn Kelly

Marilyn Kelly's health declined quickly during her eight months at an eldercare home. The 78-year-old entered Our House Too in Rutland a spirited woman who could cast a fishing rod. She soon began taking falls, and her visiting daughters often found their mother slumped in a stupor.

They blamed her dementia at first. Then they learned that Our House Too was giving Marilyn daily doses of Haldol, a powerful and sedating antipsychotic drug. Her daughters arrived one day to discover Marilyn trying to feed herself, but she couldn't find her mouth with her fork. She was still in pajamas; her arm was smeared with excrement.

The final blow: The facility's owner revealed that an overnight staffer had been caught on camera shoving Marilyn to the floor. She walked away as Marilyn cried out in pain.

Our House Too's "egregious" care cut Marilyn's life short, a former head of the state agency that licensed the home later contended in support of a lawsuit filed by Marilyn's family. State inspectors who visited just after Marilyn died logged numerous regulatory violations — but did not issue so much as a fine.

The shortcomings they cited at Our House Too are not uncommon, a joint investigation by Seven Days and Vermont Public Radio has found. The news organizations analyzed more than five years of complaints, inspection reports and other documents to provide a window into assisted living and residential care homes operating in Vermont.


Hear the companion radio report from VPR's Emily Corwin below.

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Marilyn Kelly at Our House Too - COURTESY OF JUNE KELLY
  • Courtesy Of June Kelly
  • Marilyn Kelly at Our House Too

The more than 12,000 pages of records reveal troubling patterns of inadequate staffing and care that have led to indignities, injuries and deaths. Scores of facilities have failed to meet some of the most basic state requirements, putting seniors at risk.

At least five residents have died in accidents related to deficient care at state-licensed homes since 2014, according to the state's own records: Two residents died after they wandered outside unnoticed and subsequently fell or suffered frostbite. One person got stuck in an improperly configured bed railing and suffocated. Another died of heatstroke while wearing multiple layers of clothing in a facility that lacked air conditioning. Another was dropped by caregivers who didn't know the proper way to use a patient lift.

That tally doesn't include other fatal falls and accidents that state regulators said homes merely didn't do enough to prevent. Documents detail residents being subjected to serious care errors during their final moments. In one case, for example, nurses didn't perform CPR on someone found pulseless in a dining room; in another instance, caregivers administered too much morphine to a terminally ill resident.

Untrained caregivers have mistakenly harmed residents, and overworked ones have cut corners. One immobile resident turned blue while submerged in a running bathtub; another was left alone overnight in soiled briefs. A few cruel staffers have insulted, threatened, assaulted and stolen from their vulnerable charges.

Despite the clear risks, homes frequently fail to complete criminal background checks on potential employees or to report allegations of abuse and neglect. Twenty-four facilities have been caught with too few staffers on duty. One home's owner told state regulators that it was easier to accept a citation than to make sure employees received their dozen hours of required annual training.

Not all of the 133 state-regulated homes have alarming records. Nearly 60 have had only lower-level citations since 2014, Seven Days and VPR's analysis found. Eight homes had no violations.

Problems are not confined to any one corner of the eldercare industry, which includes nonprofits, small businesses owned by Vermonters and, increasingly, larger facilities built or snapped up by out-of-state investors. Some have just a few beds; others have more than 100.

Families seeking a safe home have little to guide them, owing to a system of state oversight that combines light regulation, limited enforcement and poor transparency.

As part of this joint project, Seven Days and VPR have published an online database that details the deficiencies found by state inspectors since 2014 at each of the assisted living and residential care homes across the state, including four that have closed.

The data tell a sobering story of an industry entrusted with the lives of more than 3,000 Vermonters — a number that is sure to grow. By 2030, one in four residents will be at least 65 years old, according to the state's projection, which could make the Green Mountain State the oldest in the country.

In Vermont, as in most states, so-called residential care has become an appealing option for seniors who aren't safe at home but don't need, or want, the sterile quarters of a nursing home. The more homelike facilities promise a place where a loved one can grow old comfortably, with his or her dignity intact — and they charge as much as $9,800 a month for the peace of mind.

Some families, like the Kellys, have paid a far higher price.

"We say a lot of things as a society that we're going to care for individuals who are vulnerable or need help," said Vermont long-term care ombudsman Sean Londergan, who advocates for residents.

But, at times, the bottom line trumps feel-good promises, he added: "When push comes to shove, these entities are businesses, and they're going to act like businesses."

'Under the Radar'

Marilyn Kelly behind Our House Too - COURTESY OF JUNE KELLY
  • Courtesy Of June Kelly
  • Marilyn Kelly behind Our House Too

Strict federal standards govern nursing homes. But it falls to states to regulate less-intensive residential care settings.

The Vermont Department of Disabilities, Aging and Independent Living, or DAIL, licenses two types of eldercare facility. Residential care homes provide room, board, personal care and medication assistance, usually overseen by a supervising nurse. They're designed for people who can't live independently but don't require full-time nursing care. Assisted living homes provide a broader range of services and place more emphasis on their charges' continued independence. Seniors can lock their apartment doors, for instance.

Residents in both types of facility receive less protection than those in nursing homes, starting with the management. Nursing home administrators must log 1,000 hours of supervised training before they can sit for licensing exams. By contrast, residential care home managers need not be licensed professionals. They only have to complete a 24-hour, self-guided online course that is administered by an industry trade organization, the Vermont Health Care Association.

The same state inspectors visit both federally regulated nursing homes and state-regulated residential care and assisted living facilities. But they inspect nursing homes twice as often. And the federal Centers for Medicare & Medicaid Services issues far more fines to nursing homes than DAIL does to the facilities it oversees.

The state has seized control of residential care homes that appeared on the verge of collapse. In 2016, it briefly took over Cota's Hospitality Home in Barre after the owner was alleged to have verbally abused residents. (See accompanying story.) Last year, the state successfully obtained a court-appointed outside manager, also known as a receiver, to oversee four homes in South Burlington and St. Albans that had come unglued under new, dysfunctional ownership of a Texas-based private equity firm.

Londergan has criticized the state oversight of eldercare homes as "weak" and "alarming." He called for accountability in his most recent annual report, the first time the ombudsman's office has done so.

In an interview, Londergan said he based his critique on anecdotal observations in Vermont, though he considers the problem a national one. Vermont isn't an outlier in its approach; the state's regulations, though 20 years old, go further than do many others. But Londergan said they don't go far enough.

chart2.png

He pointed to a 2018 inspection of the Residence at Shelburne Bay, during which the state discovered that the assisted living wing was operating a locked dementia floor it never got approval to create. The home was advertising the unit. DAIL couldn't say how long residents had lived there.

"It highlights to me how residential care homes and assisted living facilities can slide under the radar," Londergan said. "I think it reflects a need for greater oversight."

These concerns plague a system that admits many of the state's frailest seniors.

For years, the state has promoted the homes as an option for those Vermonters. "Level of care variances" allow them to make private arrangements to care for individuals with greater nursing needs than the facilities are licensed to provide. Another 500 nursing home-eligible seniors live in the less-intensive settings with help from a state Medicaid program called Choices for Care. More than half of the 13 residents at Our House Too were receiving such aid when Marilyn Kelly lived there, court disclosures show.

DAIL Commissioner Monica Hutt said the programs are intended to help seniors age where they choose.

While the homes sometimes depict active, wine-sipping seniors on their websites, in reality many also care for residents who need the assistance of multiple caregivers simply to get out of bed.

Regulators used to flag homes where more than half of the residents had nursing home-level needs. The office no longer has resources to track the numbers, DAIL licensing chief Pamela Cota said. (She is not connected to Cota's Hospitality Home.)

But the trend still concerns her. She said: "One has to question any system that's built on variances."

Cota does not consider the services at residential care homes to be a "vast failure," but the licensing chief said the industry, even more than nursing homes, "is what keeps me up at night."

'Deplorable'

Our House Too in Rutland - CALEB KENNA
  • Caleb Kenna
  • Our House Too in Rutland

State-licensed homes face severe business challenges, Cota said. Facilities that rely on Medicaid are limited by how little the state reimburses homes for care. And all providers struggle to find workers in a state where caregiving needs are outpacing the labor supply.

"They need support. They need framework. They need clear regulations to help them," she said. "I want to be a support for them, but I don't have the time to do it."

The state is currently revising the 20-year-old rules for residential care homes — a process Cota said provides a chance to "get these residents safer care that's a little closer to what they would expect to see in a nursing home."

In an interview at DAIL's Waterbury headquarters, Commissioner Hutt called the existing rules "solid" and said the state's current enforcement tools are generally effective, if not perfect. Presented with some of Seven Days and VPR's key findings, Hutt acknowledged room for improvement. She also said the oversight system is built with the state's reliance on long-term-care beds in mind.

"We need to ensure that there is capacity across the state of Vermont to care for Vermonters. We need to ensure it's of the highest quality. There is an enormous amount of balancing that happens to make that true," Hutt said.

The existing regulations cover areas such as admissions, residents' rights, medication management, nutrition and environment. They tell homes how hot the bathroom faucets can run, what kind of staff training to offer and when to update residents' individualized plans of care.

State inspectors visit each home unannounced every two years or so. Cota said some homes used to go even longer without inspections before she took over in 2010.

Inspectors' visits to homes provide only a keyhole view into how they're run. They review the records of a small sample of residents and gauge whether their needs are being met. If the sample does not include a resident with a history of wandering, for instance, the state doesn't look at whether the home's monitoring systems are adequate.

Cota's staffers also inspect homes in response to complaints.

Seven Days and VPR reviewed nearly 500 complaints received by the Division of Licensing and Protection since 2014. The state withheld the contents of allegations that inspectors did not substantiate, plus the identities of complainants and residents, as the law allows.

During that time, almost half of all violations were discovered as the state was following up on a complaint.

chart1.png

Sometimes an eldercare home's employees are the first to report concerns. In 2017, an employee of Holton Home in Brattleboro told the state the facility's executive director at the time was overriding her nurses' clinical decisions and taking on residents the facility couldn't handle. The following year, an employee lodged a similar complaint at a sister facility called Bradley House. A high-needs resident, the complainant wrote, wandered off and fell into a snowbank and was rushed to the emergency room for hypothermia.

An inspector faulted the Bradley House for the accident, concluding that poor care and short staffing rose to the level of neglect.

All told, the state has found more than 2,000 violations across the industry since 2014, Seven Days and VPR determined.

Homes are cited most frequently for mismanaging residents' medication. The year before Marilyn Kelly moved into Our House Too, the facility gave a resident numerous doses of the anti-anxiety drug Valium. The prescription was "as needed," but nobody had figured out what, exactly, that meant. Neither did staff explore alternatives to drugging, nor watch for side effects, inspectors said.

DAIL conducted 38 inspections in recent years in which it determined that poor care resulted in significant harm to seniors. One resident of Ethan Allen Residence in Burlington was hospitalized for sepsis following a skin infection. Hospital staff were shocked by the "deplorable skin care" the patient had been receiving at the home, according to the state's report.

Homes also sometimes struggle to prevent residents from harming each other. The reports detail residents who have wielded canes, thrown chairs, scratched each other and made unwanted sexual contact.

And when things go wrong, homes often fail to document, investigate or disclose what happened. Forty-one homes have not made required timely reports of possible abuse or neglect to the state, the data show.

Regulators sometimes list relatively minor deficiencies, such as dirty kitchen equipment or not keeping cleaning supplies in locked cabinets.

Most shortcomings, in fact, are not classified as causing "actual harm." But they still caused residents distress or put them at serious risk.

There's the case at Lincoln House in Barre of a former kitchen staffer who responded to requests for alternative meals by smothering sandwiches with inedible amounts of mustard. Or a rule at Harvey House, in Castleton, that residents couldn't wear more than one layer of clothing because that created too much laundry.

One of the greatest risks comes from having too few staff on duty. Earlier this year, South Burlington's upscale Residence at Quarry Hill was cited for having only three nighttime caregivers for 94 residents, 25 of whom lived in a dementia unit.

More than one in four homes have been called out for failing to complete employee background checks, Seven Days and VPR found.

At Lincoln House, inspectors have cited missing background checks during three consecutive inspections since 2014. White River Junction's Valley Terrace was found to be lacking background checks for two employees in 2018 — just a year after a 22-year-old caregiver there raped an 83-year-old resident in its dementia unit.

In the vast majority of cases, the homes were simply required to write a plan to correct the problem. The state follows up on serious cases and generally considers penalties only if the home still hasn't followed through, Cota said.

The state has only issued six fines since 2014. Yet Seven Days and VPR found 150 instances in which a home received the same citation on back-to-back visits.

Regulators can take immediate action when they find situations that are "reasonably expected" to cause serious harm or death. But they rarely step in. A string of problems at one home offers a prime example of what can happen when they don't.

Fatal Mistakes?

June Kelly holding family photos - JAMES BUCK
  • James Buck
  • June Kelly holding family photos

Two elderly residents of St. Joseph's Residential Care Home died just three months apart in 2015 after wandering outside in the middle of the night. Only a month prior to the first death, Cota had congratulated the home on a clean inspection.

Operated by Vermont Catholic Charities, the home is in an old brick building on Burlington's North Prospect Street, about a half mile north of the University of Vermont campus. St. Joseph's 41 bedrooms are spread across three floors, with seven doors leading in and out.

Walter Bartlau, age 87, walked out one of them during a subzero February night. The door closed and locked behind him. Wearing a nightshirt, he pounded on it and pleaded for someone to let him back in. He was bloody and severely frostbitten by the time he was found 90 minutes later.

He died a month afterward. The medical examiner classified his death as accidental, due in part to frostbite.

Following Bartlau's ordeal, regulators cited the home for failing to provide necessary services or a safe environment for him — two of the most serious citations issued in recent years. They deemed the home had put residents in "immediate jeopardy."

None of the doors had been equipped with alarms on the night Bartlau got locked outside; only the front entrance had a doorbell. The facility agreed to install noise alarms on all doors and a doorbell on the side door he had used. The state approved a plan of correction and confirmed during a June 1 revisit that it had been implemented.

That same day, an 89-year-old veteran and retired engineer moved in. Within a week he'd wandered away twice undetected, despite the new alarm. The second time, on June 8, police found him half a mile away on the steps of UVM's Lambda Iota fraternity; he had tripped and broken his spine. His subsequent death was ruled an accident.

The facility upgraded its alarm system in July and agreed to activate it from 9 p.m. to 5 a.m. The state approved that plan, too. Regulators issued no fines — because the second injury was not considered the result of an uncorrected violation, Cota said. Nor did they bar St. Joseph's from admitting new residents until the state could verify the plan was in place. Cota said that's because her office only uses admissions bans when a home's "general population" is at risk.

Bartlau's children, who did not respond to messages for this story, called out the "elopement," or wandering, problem in a subsequent wrongful death lawsuit that was settled out of court.

"St. Joseph's operates with unqualified and inadequate staff, who are called upon to care for too many high-needs residents, in a sprawling building with too many unlocked exit doors, and no alarms or other security devices, or even the most basic elopement policies," their complaint alleged. "It has taken the deaths of two residents — from injuries related to elopements — for Defendants finally to start addressing this serious safety problem."

Even the second state-approved plan wasn't enough. Later that summer, Burlington police twice found residents missing from St. Joseph's. In one instance, its staff had marked a resident as present when in fact their charge had been gone for nearly three hours, the state found. In the other, officers found the confused resident near the Church Street Marketplace, according to a police report.

The facility adjusted the alarm system again to activate at 8 p.m. instead of 9 p.m. and attached a GPS tracker to another resident prone to wander. The state levied a daily fine until the latest corrective plan was implemented. The total penalty: $1,554.

Vermont Catholic Charities executive director Mary Beth Pinard said in a statement that the organization "works extremely hard to keep our residents safe in all our homes" and holds staff meetings and safety analyses regularly. "On those rare occasions where there are incidents, we investigate the causes and evaluate whether systems can be improved," she said.

Wandering and related "exit-seeking" behavior is common among seniors with dementia. Marilyn Kelly had tried to leave Our House Too on her first day there by climbing over a fence in the backyard in full view of staff.

The home's staff took a controversial approach to managing the behavior, her children allege. That evening, they say, Our House Too's management contacted Marilyn's new physician's assistant and received a prescription for Haldol, which they began giving her three times a day, usually by crushing it into her drinks.

Haldol is an old-school antipsychotic that is not approved by the U.S. Food & Drug Administration to treat agitation in dementia patients. Its "black box" warning lists increased risk for "a greater rate of cognitive decline and mortality in persons with dementia."

In nursing homes across the country, the use of medications such as Haldol for patients like Marilyn is prohibited. Vermont residential care facilities, on the other hand, have no such prohibition in the decades-old governing rules. The state has nonetheless cited two homes — the Residence at Otter Creek in Middlebury and Our Lady of Providence in Winooski — for inappropriate use of the drug.

"There really is no role for Haldol" in any long-term-care facility, former DAIL commissioner Dr. Susan Wehry said.

Wehry, a geriatric psychiatrist, is serving as an expert witness for Marilyn's children in a lawsuit against Our House Too. Wehry headed DAIL from 2011 to 2015. She said in an interview that she agreed to testify because Marilyn's treatment was "so egregious" that Wehry was embarrassed that the facility's most recent license bore her name.

June Kelly, Marilyn's legal guardian, said she didn't learn about the Haldol until months after Our House Too began medicating her mother. When June objected, she alleges, the physician's assistant who wrote the prescription weaned Marilyn off the drug but later allowed the facility to use it daily at a lower dose — again without consulting June.

"There was no discussion about putting Mom on Haldol. There was no discussion about the implications of what Haldol would do to our loved one," June said.

Marilyn wasn't the only resident at Our House Too who was allegedly being given Haldol without her guardian's informed consent. June soon became friendly with Jean Kuhn, whose mother, Kay Kesek, was also a resident. Jean and her husband, Bryant, said in an interview that they were also disturbed to find Kay sedated with Haldol. Once, the Kuhns claimed, Our House Too gave Kay so much Haldol that she had to be revived at an emergency room.

Our House Too co-owner Paula Patorti declined to comment on Kay, citing policy and federal privacy law. In court filings related to Marilyn, the home has denied that its staff used Haldol inappropriately.

Our House Too and its three sister homes advertised "highly qualified and trained staff" on their website. But caregiving staff at Our House Too included teenagers with no previous experience. They also prepared meals, did laundry and helped clean the facility.

Across the industry, low-paid workers such as these provide most direct services to residents. Marissa Flagg joined Our House Too in September 2015. Within a few months, the 20-year-old was struggling to manage personal turmoil and her new job as a caregiver, according to law enforcement interview transcripts obtained by Seven Days and VPR. A colleague later claimed she reported Flagg to management for threatening to punch residents in the face. Administrators told authorities Flagg had been becoming lazy, frustrated and insubordinate, the transcripts show.

Flagg reported one night in December for an overnight shift at Our House Too alongside a college student who was working as a caregiver over her winter break. Around 2 a.m., Marilyn began arguing with the temporary caregiver in the living room. The young woman walked away, and Marilyn slowly followed.

Flagg walked by and, as captured on surveillance video, shoved Marilyn from behind. The elderly woman fell to the floor. Flagg stepped past her — and then walked off the job. Marilyn lay on the floor for more than an hour, clearly upset and refusing aid. A 16-year-old caregiver called in to help at 3 a.m. coaxed her to her feet.

Our House Too took Marilyn to an emergency room the following morning. Doctors found significant bruising on her side and buttocks.

Two weeks later, Marilyn's children found her slumped over on a couch at Our House Too, struggling to breathe. Their mother was dying.

'The Emotion ... Is Anger'

Connie Kurth - COURTESY OF THE KURTH FAMILY
  • Courtesy Of The Kurth Family
  • Connie Kurth

June Kelly relied on word of mouth and a home visit when deciding to move Marilyn to Our House Too. "We liked it because it was a smaller environment," said the public safety instructor and retired Vermont Air National Guard master sergeant. Its owners promised home-cooked meals and cited their own mother's Alzheimer's disease as the inspiration for the business.

June didn't know about Our House Too's previous citations. Like most Vermonters in her position, she didn't know where to look.

The state does post inspection reports online, though no law or regulation requires it. But the reports are difficult to find, hard to understand and not always up to date.

More than 150 of the 794 inspections completed since 2014, nearly 20 percent, were missing from the DAIL's website, Seven Days and VPR discovered. That's more inspections than the state conducts in any one year. The missing reports contain numerous serious violations.

DAIL blamed the missing reports, some of which were years old, on website problems.

"I think we can do better at that," Commissioner Hutt said.

The state provided the reports to the news organizations upon request and began posting them online in the weeks since.

The information isn't useful for would-be consumers alone. While reporting this story, Seven Days and VPR spoke with the adult children of two deceased residents who were unaware that the state had found grave errors in their loved ones' care.

Connie Kurth, 92, died in March 2018 after two caregivers at Our Lady of Providence in Winooski tried to raise her out of bed with Hoyer lift equipment they didn't know how to use. She fell to the floor and broke her hip, suffering great pain.

"You could see her wince," her son Rob recalled.

The facility told Connie's five children that their mother had fallen while being assisted out of bed, Rob recalled. He said they weren't shocked by the idea that she'd fallen, given her poor health and obstinacy.

"We thought, She's a difficult patient to work with. It's sad that she broke her hip," he said.

He didn't know that the state subsequently cited Our Lady of Providence for numerous violations related to Connie's accident.

According to the state's report, Connie had asked to be placed back down, but the caregivers continued the lift procedure, failing to respect her right to refuse care. The home didn't have appropriate policies to guide its use of the equipment. The caregivers who dropped Connie were unable to demonstrate proper use of the Hoyer lift to a state inspector.

Family members, Rob said, only discovered the state inspection report online after Seven Days contacted them. They'd never been notified of the findings. It's not a state requirement.

Reading the report prompted Rob to reconsider his mother's passing.

"The emotion that comes up is anger," he said.

Marilyn Kelly's children have no doubt that poor care caused their mother's premature death.

Two of her seven children were visiting from out of state when they found her struggling to breathe. She was sitting on a couch in the hallway where she'd been pushed down two weeks earlier by a caregiver.

They took her to a hospital, where she was diagnosed with bronchopneumonia. She still had bruises from the assault, and a subsequent X-ray showed a compression fracture in her vertebrae. All her doctors could say was that it had occurred in the previous few months.

Marilyn died two weeks later.

Flagg pleaded guilty to a misdemeanor count of assaulting a vulnerable adult and was sentenced to 30 days on a work crew, plus suspended jail time.

A licensing inspector arrived at Our House Too in February 2016.

The state found 19 regulatory violations, from the "isolated" incident of keeping Marilyn free from physical abuse to a "pattern" of failing to treat residents with respect and dignity and a "widespread" failure to properly train staff to administer medication. The state did not substantiate a complaint related to Our House Too's use of Haldol.

Our House Too co-owner Patorti declined to answer specific questions about Marilyn but said she remains passionate about her work. In court filings, the company has disputed the Kelly family's claims, which include negligent care, negligent supervision and retention of Flagg, consumer fraud, and wrongful death.

Though it was Flagg who assaulted their mother, June said it is Our House Too that should be accountable for her painful final months.

Former commissioner Wehry put it bluntly: "Their overall treatment of her was really psychologically abusive, and I think it hastened her death."

The state did not sanction Our House Too for its rash of violations. Inspectors who followed up three months later found that the problems had been addressed but issued a new citation for keeping inaccurate medical records.

Wehry said Marilyn's case indicates that the state should do more to hold homes accountable.

"Doing a retrospective look, finding that something egregious has occurred and there being no consequence other than, 'Please submit a plan of correction,' is an inadequate model," she said.

Marilyn was enormously proud of her large family, which had grown to include 20 grandchildren. She was about to gain a great-granddaughter when she died, her daughter Alice Ruffner said.

"She had a conversation with my daughter — she was, at that point, off the Haldol — and she had a decent conversation," Ruffner recalled. "And she goes, 'I can't wait to meet your daughter when she's born.' And she didn't have that opportunity."

"So I want to — I want this facility to be held responsible for what they did."

Correction, November 27, 2019: An earlier version of this story misattributed quotes from Alice Ruffner.

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