BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON HEALTH
                          Senator Ed Hernandez, O.D., Chair

          BILL NO:                    SB 1010             
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          |AUTHOR:        |Hernandez                                      |
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          |VERSION:       |March 30, 2016                                 |
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          |HEARING DATE:  |April 13, 2016 |               |               |
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          |CONSULTANT:    |Melanie Moreno                                 |
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           SUBJECT  :  Health care:  prescription drug costs

         SUMMARY  :1)  Requires health plans and insurers that report rate  
          information through the existing large and small group rate  
          review process to also report specified information related to  
          prescription drug pricing to Department of Managed Health Care  
          (DMHC) and California Department of Insurance (CDI). Requires  
          DMHC and CDI to compile specified reported information into a  
          consumer-friendly report that demonstrates the overall impact of  
          drug costs on health care premiums.  Requires drug manufacturers  
          to notify specified state purchasers, health plans, and health  
          insurers, in writing at least 60 days prior to the planned  
          effective date, if it is increasing the wholesale acquisition  
          cost of a prescription drug by more than 10% during any 12-month  
          period or if it intends to introduce to market a prescription  
          drug that has a wholesale acquisition cost (WAC) of $10,000 or  
          more annually or per course of treatment. Requires drug  
          manufacturers, within 30 days of notification of a price  
          increase or of the introduction to market of a prescription drug  
          that has a WAC of $10,000 or more annually or per course of  
          treatment, to provide specified information to purchasers,  
          including a justification for the pricing.
          
          Existing law:
          1)Establishes the DMHC to regulate health care service plans  
            (health plans) and the CDI to regulate insurers, including  
            health insurers.

          2)Requires health care service plans and health insurers to file  
            specified rate information with DMHC or CDI, as applicable,  
            for health care service plan contracts or health insurance  
            policies in the individual or small group markets and for  
            health care service plan contracts and health insurance  







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            policies in the large group market.

          3)Requires, for large group health plan contracts and health  
            insurance policies, plans and insurers to file with DMHC or  
            CDI the weighted average rate increase for all large group  
            benefit designs during the 12-month period ending January 1 of  
            the following calendar year, and to also disclose specified  
            information for the aggregate rate information for the large  
            group market.

          4)Requires health plans and health insurers, for the small group  
            and individual markets, to file with DMHC and CDI, at least 60  
            days prior to implementing any rate change, specified rate  
            information so that the departments can review the information  
            for unreasonable rate increases.  

          5)Requires DMHC and CDI to accept and post to their Internet Web  
            sites any public comment on a rate increase submitted to the  
            departments during the 60-day period.

          6)Under federal law, requires drug manufacturers to obtain  
            approval of new drugs from the federal Food and Drug  
            Administration (FDA).  

          7)Establishes the Sherman Law, administered by Department of  
            Public Health (DPH), which, among other things, regulates the  
            packaging, labeling, and advertising of drugs and medical  
            devices in California.

          8)Prohibits, in the Sherman Law, the sale, delivery, or giving  
            away of any new drug or new device unless it is either: 

                  a)        A new drug, and a new drug application has  
                    been approved for it by the FDA, pursuant to federal  
                    law, or it is a new device for which a premarket  
                    approval application has been approved, and that  
                    approval has not been withdrawn, terminated, or  
                    suspended under the FDA; or
                  b)        A new drug or new device for which DPH has  
                    approved a new drug or device application, and has not  
                    withdrawn, terminated, or suspended that approval.

          9)Requires DPH to adopt regulations to establish the application  
            form and set the fee for licensure and renewal of a drug or  
            device license. 








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          This bill:
          Reporting of drug prices by health plans and insurers
          1)Requires health plans and insurers that report rate  
            information through the existing large and small group rate  
            review process to also report to DMHC and CDI, on a date no  
            later than it reports the rate information, the information in  
            a) through c) below for or all covered prescription drugs,  
            including generic drugs, brand name drugs, specialty drugs,  
            and prescription drugs provided in an outpatient setting or  
            sold in a retail setting:

                   a)         The 25 most frequently prescribed drugs and  
                     the average wholesale price (AWP) for each drug; 
                   b)         The 25 most costly drugs by total plan  
                     spending and the AWP for each drug; and, 
                   c)         The 25 drugs with the highest year-over-year  
                     increase and the AWP for each drug.

          2)Requires DMHC and CDI to compile the reported information into  
            a consumer-friendly report that demonstrates the overall  
            impact of drug costs on health care premiums. Requires the  
            data in the report to be aggregated and not reveal information  
            specific to individual health care service plans. Requires  
            DMHC and CDI to publish the report on its Internet Web site by  
            January 1 of each year.

          3)Requires DMHC and CDI to include the published report as part  
            of the public meeting required under the existing large group  
            rate review law.

          4)Requires DMHC and CDI, except for the report required under 2)  
            above, to keep confidential all of the information provided,  
            and exempts that information from disclosure under the  
            California Public Records Act.

          5)Requires health plans and insurers, as part of reporting for  
            large group rate review, to disclose the following information  
            for covered prescription drugs, including generic drugs, brand  
            name drugs excluding specialty drugs, and specialty drugs  
            dispensed at a plan pharmacy, network pharmacy, or mail order  
            pharmacy for outpatient use all of the following:
                  a)        The percentage of the premium attributable to  
                    prescription drug costs for the prior year for each  
                    category of prescription drugs;








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                  b)        The year-over-year increase in the percentage  
                    of the premium attributable to each category of  
                    prescription drugs;
                  c)        The year-over-year increase in per member, per  
                    month costs for drug prices compared to other  
                    components of the health care premium;
                  d)        The specialty tier formulary list; and,
                  e)        The percentage of the premium attributable to  
                    prescription drugs administered in a doctor's office  
                    that are part of the medical benefit as separate from  
                    the pharmacy benefit, if available.

          Reporting of price increases and expensive pricing by drug  
          manufacturers:
          6)Requires drug manufacturers of a branded prescription drug, or  
            of a generic prescription drug with a price of $100 or more  
            per 30-day supply, to notify each state purchaser, health care  
            service plan, or health insurer if it is increasing the  
            wholesale acquisition cost of a prescription drug by more than  
            10% during any 12-month period or if it intends to introduce  
            to market a prescription drug that has a WAC of $10,000 or  
            more annually or per course of treatment. 

          7)Requires the notice to be provided in writing at least 60 days  
            prior to the planned effective date of the increase, and a  
            copy of the notice to be provided concurrently to the Chairs  
            of the Senate Committee on Appropriations, the Senate  
            Committee on Budget and Fiscal Review, the Assembly Committee  
            on Appropriations, and the Assembly Committee on Budget.

          8)Specifies that a "state purchaser," for purposes of this bill  
            includes, but is not limited to, the California Public  
            Employees' Retirement System, the Department of Health Care  
            Services (DHCS), the Department of General Services, and the  
            California Department of Corrections and Rehabilitation  
            (CDCR), or entity acting on behalf of a state purchaser.

          9)Requires drug manufacturers, within 30 days of notification of  
            a price increase, or of the introduction to market of a  
            prescription drug that has a WAC of $10,000 or more annually  
            or per course of treatment, to report all of the following  
            information to each state purchaser, health plan, or health  
            insurer:

                  a)        A justification for the proposed increase in  








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                    the price of the drug, including all information and  
                    supporting documentation as to why the increase is  
                    justified.
                  b)        The total dollar amount of public funding  
                    received by the manufacturer for the development and  
                    marketing, including, but not limited to, state and  
                    federal tax credits, grants, and all other public  
                    subsidies; 
                  c)        The expected marketing budget for the drug; 
                  d)        The date the drug was purchased if it was not  
                    developed by the manufacturer; and, 
                  e)        A schedule of past price increases for the  
                    drug.

          10)Requires a fine of $1,000 per day for every day after the  
            30-day notification period to be levied on manufacturers for  
            failure to report the information in 9) above. 

          11)Requires the Legislature to conduct an annual public hearing  
            regarding the price increases and information reported under  
            6) and 9) above. Requires the hearing to provide for public  
            discussion of the reasons for the price increases, emerging  
            trends, decreases in drug prices, and the impact on health  
            care affordability and premiums.

          12)Prohibits this bill from restricting the legal ability of a  
            drug manufacturer to change prices as permitted under federal  
            law.

           FISCAL  
          EFFECT  :  This bill has not been analyzed by a fiscal committee.
           
          COMMENTS  :
          1)Author's statement.  According to the author, the introduction  
            of new and innovative drugs is vital to our health care  
            system, but these often high-priced treatments come with a  
            multitude of challenges. Drugs priced in excess of $10,000 are  
            becoming common-place with little transparency for these  
            astronomical price tags. This high-priced trend is a costly  
            burden for patients, state programs, employers, and other  
            payers, making it crucial that we understand what's behind the  
            exploding prices. The public and policymakers need greater  
            insight that will allow us to identify strategies to ensure  
            prices do not threaten access to life-saving treatments.  
            Additionally, data suggests that publically accessible price  








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            information in other sectors of the health care market  
            encourage providers to offer more competitive pricing and  
            thereby reduce excess health spending. Transparency-focused  
            policies, like those implemented by the Affordable Care Act  
            (ACA), have led to rules requiring hospitals in California to  
            provide information on pricing for common surgeries, health  
            plans to submit detailed data regarding premium changes, and  
            doctors to report more information to the federal government.  
            But, drug makers have been granted an exception to this  
            forward-thinking trend. SB 1010 will bring prescription drugs  
            in line with the rest of the health care sector by shedding  
            light on those drugs that are having the greatest impact on  
            our health care dollar. This change is absolutely necessary in  
            an environment where more than 900 drugs are sporting  
            price-tags at or above $10,000 and new drugs with  
            record-breaking prices are being released to address diseases  
            that impact millions, including hundreds of thousands of  
            patients in public programs like Medi-Cal.
            
          2)Health care costs. Health care accounts for more than 17% of  
            the U.S. Gross Domestic Product ($3 trillion, or $9,523 per  
            person) and health care costs continue to consume  
            significantly large percentages of federal, state and personal  
            budgets.  Health care continues to grow at higher rates than  
            inflation.  In 2013, the U.S. spent far more on health care  
            than other high-income countries. Higher spending is due to  
            multiple factors including greater use of medical technology  
            and higher health care prices, not necessarily more frequent  
            doctor visits or hospital admissions. 

          3)Drug costs. A study published in Health Affairs in December  
            2015 found that drug spending is growing faster than other  
            health care spending in the U.S. - increasing 12.2% between  
            2013 and 2014. A Kaiser Family Foundation analysis of data  
            from the Centers for Medicare and Medicaid Services and Truven  
            Health Analytics shows that while drugs account for 10% of  
            U.S. health spending, it represents 19% of the cost of  
            employer insurance benefits.  Some speculate that this  
            disparity exists because the $3 trillion in U.S. health  
            spending is a broad catchall with includes hospital care,  
            physician services, drugs, research, administrative costs,  
            public health activities, and long-term care.  Additionally,  
            some of the people served by Medicare and Medicaid (whose  
            spending is counted in the national totals) require many  
            services not typically used by those covered by employer  








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            health plans. According to an analysis by the CEO of the  
            Kaiser Family Foundation, even that 19% figure is understated  
            because while it includes prescriptions that patients fill at  
            pharmacies, it does not include many of the expensive drugs  
            administered in physicians' offices or hospitals. In Medicare,  
            for example, retail prescription drugs represent 13% of  
            overall spending while drugs administered mainly by physicians  
            add an additional 6%.

          4)Drug pricing. Federal regulations prohibit the U.S. government  
            from setting the price of pharmaceuticals, and patents on  
            drugs, in effect, prohibit competition, at least initially.  
            Countries without these restrictions generally buy drugs for a  
            fraction of the U.S. price. Pharmaceutical companies argue  
            that high drug prices are justified because of the enormous  
            cost and risk associated with bringing a drug to market and  
            that payment for current drugs fund future innovation.  
            Developing a new drug costs an average of $1.2 billion and  
            takes 10 to 15 years. When a new drug provides a cure for a  
            disease, as opposed to only treating symptoms, drug companies  
            claim that a high upfront cost is mitigated by not having to  
            treat symptoms indefinitely. However, critics point to  
            numerous examples of drug companies charging high prices for  
            drugs with only marginal improvements over cheaper  
            alternatives, or astounding increases in pricing for drugs  
            that have been on the market for years.
          
          5)Price Benchmarks.  Knowing how much a drug costs is difficult;  
            there are many different prices for each drug and different  
            ways of expressing those prices.  In the US, the two most  
            common ways of stating drug prices are the WAC and average  
            wholesale price (AWP).  Neither one, though, is the actual  
            price paid by a payer, nor are they what their names imply.   
            Rather, they're standardized ways of expressing a price, thus  
            allowing comparisons to be made from one drug to another.  AWP  
            is a benchmark that has been used for over 40 years for  
            pricing and reimbursement of prescription drugs for both  
            government and private payers.  Initially, the AWP was  
            intended to represent the average price that wholesalers used  
            to sell medications to providers, such as physicians,  
            pharmacies, and other customers.  However, the AWP is not a  
            true representation of actual market prices for either generic  
            or brand drug products.  AWP has often been compared to the  
            "list price" or "sticker price," meaning it is an elevated  
            drug price that is rarely what is actually paid.  AWP is not a  








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            government-regulated figure, does not include buyer volume  
            discounts or rebates often involved in prescription drug  
            sales.  As such, the AWP, while used throughout the industry,  
            is a controversial pricing benchmark.

            The WAC price of a drug on the market, as originally announced  
            by the company is also rarely the price paid by a payer.  The  
            actual price paid by any one payer is proprietary information,  
            complicating discussions of value and cost to consumers.  Drug  
            companies negotiate with payers - Medicare, Medicaid,  
            insurers, and pharmacy benefit plans - to set an initial gross  
            sales price.  Drug manufacturers pay rebates back to  
            government entities, creating a difference between gross sales  
            for a drug and net sales.  The rebates are not publicly  
            available, and vary highly among payers and for different  
            drugs.  Estimates put them between 2% for innovative new drugs  
            all the way to 60% for drugs that have several competitors or  
            generics on the market.  


          
            Federal law requires manufacturers to provide rebates to the  
            Centers for Medicare and Medicaid Services and state Medicaid  
            agencies.  The program requires a drug manufacturer to enter  
            into, and have in effect, a national rebate agreement with the  
            Secretary of the Department of Health and Human Services (HHS)  
            in exchange for state Medicaid coverage of most of the  
            manufacturer's drugs.  These rebates are paid by drug  
            manufacturers on a quarterly basis to states and are shared  
            between the states and the federal government to offset the  
            overall cost of prescription drugs under the Medicaid program.  
             According to DHCS, drug manufacturers are required to pay a  
            Medi-Cal rebate for all outpatient drugs that are dispensed  
            and paid for by the Medi-Cal program.  In addition, some  
            manufacturers have agreed to pay supplemental Medi-Cal rebates  
            above the standard rebate.  Federal law requires rebates for  
            prescriptions offered through the AIDS Drug Assistance Program  
            (ADAP), in part because of the high cost of HIV/AIDS  
            medications.  According to the Kaiser Family Foundation, drug  
            manufacturer rebates account for 40% of the annual ADAP  
            budget. 
           
          6)Impact on state finances.  Medi-Cal provides health care  
            coverage for nearly one-third of Californians. Combined with  
            CalPERS, ADAP, state hospitals, and corrections, taxpayer  








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            liability for increasing drug costs is significant.  According  
            to a December 2015 report published by the U.S. Senate  
            Committee on Finance, Medi-Cal's fee-for-service system alone  
            spent nearly $25 million treating roughly 340 patients with  
            Sovaldi and Harvoni in 2014.  However, Medi-Cal  
            fee-for-service is only a fraction of the Medi-Cal population.  
            Private health plans invoiced the state an additional $387.5  
            million for Sovaldi and Harvoni treatments for Medi-Cal  
            managed care enrollees between July 2014 and November 2015  
            (for 3,624 patients) according to DHCS. Additionally, as a  
            direct result of Sovaldi and Harvoni pricing, the 2015-16  
            California state budget allocated $228 million just for high  
            cost drugs to DHCS and CDCR.  In December 2015, it was  
            reported that CalPERS spent $438 million on specialty drugs,  
            an increase of 32% from the previous year.  This represents  
            one quarter of the total drug costs paid by CalPERS, while  
            only 1% of the prescriptions filled. 

          7)Support.  California Labor Federation, AFL-CIO (CLF), the  
            sponsor of this bill, states that the drug manufacturer  
            disclosure required under this bill gives purchasers advance  
            notice of increases, along with additional information to  
            discern between reasonable price increases and predatory  
            pricing. CLF states that pharmaceutical companies produce  
            lifesaving medications and it is critical that they are able  
            to conduct research to make ground-breaking discoveries,  
            however, not all price increases are related to R&D costs, nor  
            are they based on effectiveness of the drug. CLF states that  
            purchasers can use this information to better negotiate for  
            discounts on drugs, or to decide that an unjustified price  
            increase is grounds for refusing to purchase a drug.  

            SEIU California writes in support that because the state,  
            taxpayers, and individuals pay significantly, at the  
            individual and aggregate levels, this matters to all of us.  
            SEIU states that the high-cost of specialty drugs creates a  
            burden on the state budget, as Medi-Cal, CalPERS and other  
            public programs struggle to cover the costs. CalPERS has  
            reported that specialty drug spending increased 32% last year  
            to $438 million annually and Governor Brown's 2015 budget set  
            aside supplemental funding of $228 million to pay for a  
            limited number of people who are served by public programs to  
            receive Harvoni and Sovaldi. SEIU contends that when drugs are  
            so expensive that it begins to make such a significant impact  
            on our state budget, the pricing of these drugs also begins to  








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            raise ethical concerns and questions about how purchasers are  
                                                      making decisions related to how many sick people can or should  
            get access to life-saving drugs.  The California Alliance for  
            Retired Americans (CARA) states that prescription drugs make  
            up 19% of benefit costs in job-based coverage. However, that  
            figure only captures drugs paid for through the pharmacy  
            benefit-drugs administered in inpatient settings, like costly  
            chemotherapy drugs, are paid for through medical benefits, and  
            account for an even greater percentage of premiums. CARA  
            writes that California can help purchasers and consumers  
            better understand pharmaceutical pricing and give them the  
            tools to fight back against price-gouging. Consumers Union  
            writes that regulators and other reviewers need as much  
            information as possible to determine whether a change proposed  
            to health insurance rates is fair or not and this bill puts  
            more tools into regulators' toolkits to protect consumers in  
            the marketplace and makes strides towards empowering consumers  
            to be more informed participants in the marketplace.  

            Health Access California (HAC) writes that congressional  
            investigations have found astronomical increases in drug  
            prices, even for drugs that have been used for millennia. For  
            some conditions, such as multiple sclerosis, the drugs used to  
            manage the condition increase in price with every new drug  
            entering the market-price competition to increase prices, not  
            lower them.  HAC states that this bill is a modest but  
            important step forward in providing transparency on  
            prescription drug costs. The National Multiple Sclerosis  
            Society - CA Action Network writes that in addressing the  
            costs of prescription drugs, this bill is a good starting  
            point because it can be an important tool to help educate  
            consumers about their health related expenses.  American  
            Association of Retired Persons (AARP) states that at a time  
            when more and more high-cost drugs are entering the market,  
            consumers, including many people over age 50, would benefit  
            from a system that discloses important information about the  
            pricing of these drugs. AARP believes that increased  
            transparency in the marketplace will empower consumers and  
            could provide much-needed clarity and a better understanding  
            of the pharmaceutical industry's pricing methods.  The  
            California School Employees Association states that they are  
            often told that prescription drug costs are not the problem,  
            and this bill will allow them to assess whether or not that is  
            true and is an important and necessary step in understanding  
            the costs of prescription drugs and how much of a cost driver  








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            they are. AIDS Healthcare Foundation writes that because their  
            patient population is dependent on drugs regardless of the  
            price, they are committed to solutions that ensure greater  
            transparency in drug pricing that will lead to prices that can  
            withstand public scrutiny.
          
          8)Opposition.   The Generic Pharmaceutical Association (GPhA)  
            states that the generic industry's business model is similar  
            to a commodities market where prices, sometimes at pennies a  
            dose, fluctuate up and down quickly and that generics provide  
            so many savings because they operate in this hyper-competitive  
            marketplace. GPhA asserts that a brand manufacturer patents a  
            drug and sets the price but in the generic marketplace  
            multiple manufacturers directly compete with each other and  
            regularly adjust prices to best react to market conditions  
            such as changes in supply costs, ingredient shortages, large  
            orders from wholesalers, and other factors.  The California  
            Life Sciences Association (CLSA) writes that the information  
            required of biopharmaceutical companies, health plans, and  
            insurers would create a highly inaccurate picture of how  
            medicines affect overall healthcare costs, and that this bill  
            treats medication costs as solely expenditures, not an  
            investment in more efficient care and better health for  
            patients. CLSA asserts that this bill ignores all the benefits  
            to patients, the healthcare system, and the economy that the  
            life science sector provides, as well as the benefits to  
            payers and pharmacy benefit managers from oftentimes  
            significantly reduced, negotiated prices.  CLSA further states  
            that the bill's requirement of advance notices prior to  
            certain drugs being marketed, being accompanied by a  
            "justification" with "supporting documentation" and an  
            "expected marketing budget," appears to violate FDA  
            restrictions against preapproval marketing or promotion of  
            investigational drugs, because the law and FDA's subsequent  
            guidance only clearly allow for the exchange of scientific  
            information and preclude any form of "commercialization" prior  
            to a medicine's approval for commercial distribution. The  
            reporting requirements as established in the bill are  
            extraordinarily broad and would potentially apply to many  
            medicines for which the impact on premiums of a price increase  
            over the threshold of ten percent would be essentially de  
            minimis and would reflect an imperceptible change in the total  
            cost of care. The Pharmaceutical Research and Manufacturers of  
            America (PhRMA) writes that while the information reported by  
            the third party payers is in the aggregate and protected from  








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            disclosure by creating specific exceptions to the California  
            Public Records Act (PRA), the data required to be submitted to  
            the state by the pharmaceutical industry includes sensitive  
            proprietary information for specific products that would not  
            enjoy the same PRA disclosure protections provided to the  
            payers - presenting both proprietary and federal antitrust  
            issues.  PhRMA furthers states that the requirement for a  
            60-day advance notice does not appear to be protected  
            information and could thus be anti-competitive, as disclosure  
            of planned pricing changes could have unintended consequences  
            and is generally viewed as extremely disruptive to the  
            competitive marketplace. 
            
           SUPPORT AND OPPOSITION  :
          Support:  California Labor Federation, AFL-CIO (sponsor)
                    AARP
                    AIDS Healthcare Foundation
                    Blue Shield of California
                    California Alliance for Retired Americans
                    California Association of Health Plans
                    California Medical Association
                    California Nurses Association
                    California Optometric Association
                    California School Employees Association
                    Consumers Union
                    Health Access California
                    Kaiser Permanente
                    LIUNA Locals 777 & 792
                    National Multiple Sclerosis Society - CA Action  
                    Network
                    SEIU California
                    Unite Here
          
          Oppose:   California Life Sciences Association
                    Generic Pharmaceutical Association
                    Pharmaceutical Research and Manufacturers of America
          
          
                                      -- END --
          
          
          











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