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  • Writer's pictureMolly Watson

OAH CASE NO. 2020070212



CASE NO. 2020070212





November 19, 2020

On, July 3, 2020, the Office of Administrative Hearings, called OAH, received a due process hearing request from Parent, on behalf of Student, naming Capistrano Unified School District as respondent. Administrative Law Judge, Penelope Pahl, heard this matter remotely on September 29 and 30, 2020, and October 1, 2020. The attorneys, party representatives, witnesses, and ALJ participated using the Microsoft Teams software platform.

Damian Fragoso, attorney at law, represented Student. Parent attended all hearing days on Student’s behalf. Student did not attend the hearing. H. Daniel Harbottle, attorney at law, represented Capistrano. Kim Gaither and Sara Cassidy, Capistrano due process legal specialists, alternated attendance over the course of the hearing on Capistrano’s behalf.

At the parties’ request, the matter was continued to October 19, 2020, for written closing briefs. Briefs were timely filed, the record was closed, and the matter was submitted on October 19, 2020.


  1. Did Capistrano Unified School District deny Student a free appropriate public education, or FAPE, by failing to appropriately assess all areas of suspected disability during the triennial assessments discussed during the February 26, 2020 IEP, specifically:

  2. failing to thoroughly assess auditory processing and adaptive behavior during the psychoeducational assessment; and

  3. failing to conduct a thorough functional behavior assessment?

  4. Did Capistrano Unified School District deny Student a FAPE, during the 2019-2020 school year, by failing to offer an educational placement that met Student’s needs in the least restrictive environment?


This hearing was held under the Individuals with Disabilities Education Act, its regulations, and California statutes and regulations. (20 U.S.C. § 1400 et. seq.; 34 C.F.R. § 300.1 (2006) et seq.; Ed. Code, § 56000 et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.). The main purposes of the Individuals with Disabilities Education Act, referred to as the IDEA, are to ensure:

  • all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living, and

  • ]the rights of children with disabilities and their parents are protected. (20 U.S.C. § 1400(d)(1); See Ed. Code, § 56000, subd. (a).)

The IDEA affords parents, and local educational agencies, the procedural protection of an impartial due process hearing with respect to any matter relating to the identification, assessment, or educational placement of the child, or the provision of a FAPE to the child. (20 U.S.C. § 1415(b)(6) & (f); 34 C.F.R. § 300.511; Ed. Code, §§ 56501, 56502, and 56505; Cal. Code Regs., tit. 5, § 3082.) The party requesting the hearing is limited to the issues alleged in the complaint, unless the other party consents, and has the burden of proof by a preponderance of the evidence. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i); Schaffer v. Weast (2005) 546 U.S. 49, 57-58, 62 [126 S.Ct. 528, 163 L.Ed.2d 387]; and see 20 U.S.C. § 1415(i)(2)(C)(iii).) In this case, Student filed the request for due process hearing and bears the burden of proof. The factual statements in this Decision constitute the written findings of fact required by the IDEA and state law. (20 U.S.C. § 1415(h)(4); Ed. Code, § 56505, subd. (e)(5).)

Student was 13 years old and in the eighth grade at the time of hearing. Student lived within Capistrano’s geographic boundaries at all relevant times. Student was eligible for special education under the primary category of autism with secondary eligibility under the categories of speech or language impairment and other health impairment. Student had been placed in the Therapeutic Behavior Intervention class, also called TBIC, since first grade. TBIC is a class for children requiring more support for self-regulation than can be provided in a general education class or less restrictive special education class. In addition to academics, TBIC provides self-regulation and coping skills instruction embedded in a highly structured program.


Student asserts that Capistrano did not thoroughly assess Student in the areas of auditory processing, adaptive behavior and functional behavior during her 2020 triennial assessments. These assessments were discussed during IEP team meetings held on February 26, 2020 and March 10, 2020. Capistrano argues that its assessments met legal standards and Student failed to prove Capistrano’s assessments were deficient.

FAPE is defined as special education and related services that are available to an eligible child that meets state educational standards at no charge to the parent or guardian. (20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.) Parents and school personnel develop an individualized education program, referred to as an IEP, for an eligible student based upon state law and the IDEA. (20 U.S.C. §§ 1401(14), 1414(d)(1); and see Ed. Code, §§ 56031, 56032, 56341, 56345, subd. (a) and 56363 subd. (a); 34 C.F.R. §§ 300.320, 300.321, and 300.501.)

In general, a child eligible for special education must be provided access to specialized instruction and related services which are individually designed to provide educational benefit through an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. (Board of Education of the Hendrick Hudson Central School Dist. v. Rowley (1982) 458 U.S. 176, 201-204 (Rowley); Endrew F. v. Douglas County School Dist. RE-1 (2017) 580 U.S. [137 S.Ct. 988, 1000].)

The IDEA requires a reassessment of a child’s special education needs at least once every three years, unless the parent and the district agree it is unnecessary. (20 U.S.C. § 1414 (2)(B)(ii); Ed Code 56381, subd. (a)(2).) Legally compliant assessments are conducted by qualified assessors who select valid, reliable assessment instruments, and other means of evaluation, that avoid discrimination on the basis of sex, race, or culture. (34 C.F.R. § 300.304(c)(1)(i).) The assessments must be administered according to the assessment producer’s instructions, in a language and form most likely to yield accurate results regarding the student’s academic, developmental and functional abilities. (20 U.S.C. § 1414 (b)(3)(A); Ed. Code § 56320, subds. (a) and (b)(3).)

Assessors are required to use a variety of technically sound assessment tools and strategies to gather relevant information, including information provided by a parent, to assist in determining whether the child has a disability; and, if so, the relative contribution of cognitive and behavioral factors, in addition to physical and developmental factors. (20 U.S.C. § 1414 (b)(2)(A); Ed. Code § 56320, subd. (b).) Assessors are prohibited from relying on a single measure or assessment as the sole basis for determining whether a child is eligible for special education or the appropriate content of an eligible student’s IEP. (20 U.S.C. § 1414 (b)(2)(A); Ed Code. § 56320, subd. (e).)


Student asserts that Capistrano’s 2020 auditory processing assessment was not thorough. Student claims that, to be thorough, Capistrano should have administered additional auditory process tests as part of the 2020 multidisciplinary assessment.

Student did not challenge the procedural legal requirements governing assessments, as set forth in 34 C.F.R. § 300.304(c)(1), 20 U.S.C. § 1414 (b)(3)(A), and Ed. Code § 56320, subds. (a) and (b)(3), regarding selection of instruments that are valid and reliable, and that avoid bias; or administration of assessments according to manufacturer instructions in a language easily understood by the student and in a form intended to produce reliable results. Accordingly, the legal findings are limited to Students’ specific contentions.

Capistrano argues that the assessment it conducted was thorough and, along with the results considered from Student’s independent assessor, Dr. Helene Johnson, provided adequate information as to Student’s deficits and needs. Capistrano asserts Student failed to prove otherwise.

Lindsay DePass was the credentialed school psychologist responsible for coordinating the 2020 multidisciplinary assessment. Part of that assessment included evaluation of Student’s auditory processing. Student was privately assessed in March 2019, by Dr. Helene Johnson. To assess auditory processing, DePass considered Dr. Johnson’s findings, which included the March 2019 Test of Auditory Processing Skills results, and the Wechsler Intelligence Scales for Children, fifth edition which also included auditory processing. DePass’ assessment also included observing Student’s auditory processing capabilities during her testing as well as in class and during unstructured activities.

DePass was unable to repeat the Test of Auditory Processing Skills in February of 2020, because the testing protocols for that instrument require the test be given no more frequently than once per year. A year had not passed since Dr. Johnson administered the test. School districts are required to administer testing instruments in accordance with instructions provided by the producer of the assessments. (34 C.F.R. § 300.304 (c)(1)(v).) DePass explained that other available auditory processing assessments were much narrower than the Test of Auditory Processing Skills, focusing primarily on a student’s phonics capabilities. DePass did not consider them good measures of Student’s broad auditory processing capabilities and needs. DePass determined the results of Dr. Johnson’s auditory processing testing were valid and reliable.

DePass compared the results of Student’s 2019 Test of Auditory Processing Skills to Student’s current cognitive ability results. DePass found the March 2019 Test of Auditory Processing Skills scores were consistent with Student’s cognitive ability score and therefore DePass did not suspect Student had Central Auditory Processing Disorder. Had the Test of Auditory Processing Skills scores been substantially lower than Student’s cognitive ability, DePass would have explored the possibility of Central Auditory Processing disorder. DePass concluded that Dr. Johnson’s testing accurately captured Student’s auditory processing deficits and needs. DePass was required to consider information provided by the parent as part of the assessment. (20 U.S.C. § 1414 (b)(2)(A); 34 C.F.R. § 300.304.)

Student called no witnesses who questioned the assessments Capistrano conducted or the validity of the prior assessment relied on. Student offered no evidence of additional auditory processing testing that DePass should have conducted. Student did not prove that the outcome of Student’s triennial auditory processing assessments were insufficiently comprehensive to identify Student’s special education and related service needs as required by the IDEA. (34 C.F.R. § 300.304(c)(6).) Student offered no evidence establishing that Student had Central Auditory Processing disorder or other auditory processing deficits that Capistrano’s testing had failed to identify.

Student failed to prove Capistrano’s auditory processing assessment was not thorough or that she was denied a FAPE because of a failure to conduct additional auditory processing assessments.


Student asserts that Capistrano’s adaptive behavior assessment was not thorough because DePass did not require Student’s teachers to complete the Adaptive Behavior Assessment System ratings in 2020. Capistrano argues that its assessment of Student’s adaptive functioning abilities and deficits was adequately informed by the combination of assessment information considered, and that Student failed to prove otherwise.

DePass assessed Student’s adaptive behavior in February of 2020 by collecting ratings from Parent on the Adaptive Behavior Assessment System, third edition; and from Parent and two of Student’s teachers on the Behavior Assessment System for Children, third edition. The Adaptive Behavior Assessment System is a rating instrument that measures the raters’ evaluation of Student’s practical, everyday skills required to function in the home, school, community, and other settings effectively and independently. DePass also considered the March 2019 Adaptive Behavior Assessment System ratings completed by Mother and two teachers included in Dr. Johnson’s report. Additionally, DePass collected Parent and teacher ratings on the Behavior Assessment System for Children in February of 2020. The Behavior Assessment System for Children is a rating system that includes evaluations of adaptive functioning, among other areas DePass concluded the March 2019 Adaptive Behavior Assessment ratings were valid assessments of Student’s adaptive functioning. The evidence established that the combination of the March 2019 and February 2020 assessments provided an adequate basis for determining Student’s adaptive functioning abilities and deficits when considered in combination with other information collected during the assessment.

During the 2020 assessment, DePass interviewed teachers, Parent and Student, as well as observing Student in the classroom, during unstructured time and during testing.

DePass’ assessment also considered the observations of Student’s adaptive skills by occupational therapist Karen Riegert, included in Capistrano’s 2019 occupational therapy assessment.

No witness testified that Capistrano’s 2020 adaptive behavior assessment of Student was deficient. Student offered no evidence establishing that more current teacher ratings on the Adaptive Behavior Assessment Skills instrument were necessary to determine Student’s adaptive functioning abilities or needs. Nor did Student prove that any other adaptive behavior assessments were needed for the IEP team to have a full understanding of Student’s adaptive functioning deficits or needs. Student failed to prove that Capistrano denied Student a FAPE by failing to conduct a thorough adaptive behavior assessment.


Student claims that DePass lacked the proper credentials to administer a reliable functional behavior assessment and, as a result, the assessment conducted was not thorough. Student contends that the functional behavior assessment should have included additional target behaviors. Capistrano argues that DePass had adequate qualifications and experience to conduct Student’s functional behavior assessment. Capistrano also argues that Student failed to prove the functional behavior assessment was deficient.

State and federal law require that an assessor must be “trained and knowledgeable” regarding the assessment. (20 U.S.C § 1414(3)(a)(iv); 34 C.F.R § 300.304(c)(1)(iv); Ed. Code § 56320, subd. (a)(3).) Student did not offer any legal authority establishing that specific credentials were required to conduct a functional behavior assessment.

DePass has been a school psychologist for over 13 years. DePass completed a course in behavior modification and writing behavior intervention plans as part of her Master’s Degree in School Psychology. Additionally, approximately five to six years ago, DePass completed Capistrano’s training as a Behavior Intervention Case Manager.

Capistrano’s training was focused on how to conduct functional behavior assessments and how to write behavior intervention plans. DePass has also attended in-service trainings related to functional behavior assessments and behavior intervention plans offered by Capistrano approximately every two to three years since completing the Behavior Intervention Case Manager training.

No witness testified that DePass’ credentials were insufficient to conduct a thorough Functional Behavior Assessment. Nor was evidence offered establishing that DePass lacked adequate knowledge or training to conduct a Functional Behavior Assessment. Student did not prove that DePass lacked adequate knowledge and training to conduct Student’s functional behavior assessment.

DePass completed Student’s functional behavior assessment by discussing target behaviors with teachers and deciding the appropriate target behavior focus for the assessment, arranging for teacher data collection regarding the target behaviors, gathering information from Parent, and observing Student at school. Behavior data regarding Student was routinely collected by TBIC teachers, as Student already had a Behavior Intervention Plan.

Additionally, DePass consulted with the teachers regarding Student’s current behaviors, and whether the target behaviors already being considered, should be changed or expanded for purposes of completing the Functional Behavior Assessment. DePass and the teachers agreed the same behavior categories continued to describe Student’s behavior challenges at school.

DePass interviewed Mother regarding Student’s behaviors. DePass considered Parent’s concerns regarding Student scratching herself, and engaging in negative

self-talk at home. No similar conduct was noted at school. There was no evidence that the conduct at home was impeding Student’s education or that stress about school was causing the concerning behaviors at home.

DePass used data collected by teachers regarding the frequency, duration, and intensity of the defined target behaviors from January 28, 2020 to February 19, 2020. DePass concluded the functional behavior assessment by analyzing the data gathered. It was notable that, although data was collected between January 28, 2020 and February 19, 2020, from February 6, to February 19, 2020 there were no behaviors to report.

Overarching behavior improvements were evident from the data collected. Noted “destruction of property” consisted of breaking a pencil and poking storage boxes with a pencil while working in the “pod”, which is a centralized area where students can go to take a test in a quiet space or take a short break from class.

Profanity consisted of a single instance of Student writing “school sucks” during her math class. Other tracked behaviors included five instances of resistance to requested tasks, four of which ended with compliance; three instances of being loud in response to requests that she complete tasks; and one instance of leaving class to go to the Pod without permission, also called “eloping.” Student had a particularly bad day on February 4, 2020. On that day, she accrued four instances of throwing things, one being a desk and shoe and one being a paper airplane. That was also the date of the single instance of non-compliance that was not remedied, the profanity, and property destruction. Student was known to have occasional bad days on which her behaviors were more pronounced. DePass concluded Student had a moderate need for a behavior intervention plan based on the results of the functional behavior assessment.

Student offered no testimony or documentary evidence proving that the target behaviors included in the assessment should have been expanded or changed. Nor did Student offer evidence that proved that any other aspect of the functional behavior assessment was not thorough. Student did not prove she had behaviors at school that were not considered when conducting the functional behavior assessment or that the conclusions of the Functional Behavior Assessment were incorrect. Student did not establish that Capistrano’s Functional Behavior Assessment was not thorough.

Accordingly, Student did not prove she was denied a FAPE based on the Functional Behavior Assessment.


At the time of the February 28, 2019 IEP, Student was placed in the TBIC program for four of her six classes, and in general education classes for an elective and physical education, or PE. TBIC classes generally numbered from five to eight students. In her middle school TBIC class, Student often received instruction individually, as there were no other students in the class at her grade level.

The evidence established that, over the course of the sixth grade, Student’s behaviors began to noticeably improve. Student had also demonstrated the ability to manage her behaviors and access the education, with the assistance of an aide, in her general education classes. Capistrano teachers and Student’s private assessor agreed Student was ready to start participating in academic classes that did not include TBIC’s additional behavior support. Capistrano teachers and administrators were also concerned that Student was occasionally beginning to mimic some of the less favorable behaviors of her classmates with special needs. The Capistrano IEP team members thought it would be best for Student to be placed in classes with classmates less likely to demonstrate maladaptive behavior.


Student did not prove that the classroom placement offered in the February 28, 2019 IEP failed to meet her needs. In the February 28, 2019 IEP, Student was offered two classes in the Structured Teaching Educating Prepared Students class, also called the STEPS, program; an elective and Physical Education, also called P.E., in general education; and two core academic classes, English and Math, in the SAI Modified Class or “SAI Mod.” Specialized academic instruction, or SAI, usually refers to a service. In this case, Capistrano included the acronym SAI in the title of the class offered to Student. In this decision, SAI Mod refers to the classroom placement offered and is analyzed as such.

The evidence established that the STEPS class, which would have 10-12 students, would offer Student remedial programs in areas Student needed more work such as such as telling time and calculating money exchanges. Additionally, the program offered instruction on practical skills such as, planning the use of public transportation, shopping trips and public recreational facilities. As part of the class, students took field trips into the community to put their plans into practice.

Student was offered the SAI Mod class for her core academic courses of English and Math. The class would also have approximately 12 students. The SAI Mod class modified the California curriculum standards by breaking down the material into more steps, and slowing the pace of instruction. Less work was required on each topic to give the students more time to work on each assignment. The IEP specified that an aide from the STEPS program would meet Student in the SAI Mod class to provide academic support. Student would continue in general education for an elective and PE, also with aide support.

Parent did not believe the February 28, 2019 IEP offer would meet Student’s needs. Parent asserted that the STEPS class would not provide adequate academic challenge and was too large, as she had observed a class with 17 Students. Capistrano special education administrators testified the STEPS classes were normally limited to 12. However, Student offered no persuasive evidence that Student would be unable to access the STEPS curriculum in a class of 17 students with the support available.

Student also argued in her closing brief that placement in the STEPs program would lead to a decision that Student would finish high school with a certificate of completion rather than a diploma. Student’s argument mischaracterized the evidence presented.

Furthermore, Student offered no evidence or legal authority establishing that the

placement offered would impact a future IEP team decision regarding Student’s high school education.

Parent believed the modified specialized academic instruction class would be too difficult; and thought Student would be “ostracized” because she would require an aide to assist with academics. Parent offered no persuasive evidence establishing that Student would be unable to access her education in the SAI Mod class with the aide support provided. Nor was evidence offered that Student would suffer any negative social impacts from having aide support in that class.

Parent stated, without offering evidence, that Student’s general education classes were highly modified and that Student did not belong there if she was unable to do the work the other students did without severe modifications. Parent also stated, without evidence that Student did not receive significant benefit from her general education classes. Parent acknowledged that Student benefited from the socialization with her typically developing peers, but asserted, also without evidence, that the interaction was minimal. Parent believed TBIC was the best fit for Student among the classes Capistrano offered.

The evidence contradicted Parent’s testimony and established that Student was engaging in her general education classes and benefiting from the interactions with her typically developing peers. Evidence also established that Student’s classmates included Student in the class activities and were kind and helpful. There was no evidence establishing that Student caused undue disruptions or was a detriment to her general education classes in any way. Student presented no persuasive evidence establishing that the offered placement was not the least restrictive environment for Student.

Student failed to prove that Capistrano’s placement offer denied her a FAPE in the least restrictive environment.


Student also failed to prove the classroom placement offered in the February 26, 2020 IEP did not meet her needs. At hearing, all of Student’s teachers and several Capistrano special education program administrators praised Student’s behavioral and social progress, echoing the information provided in the February 26, 2020 and March 13, 2020 IEP team meetings. Student’s general education art teacher, Steve Lewis, greatly admired Student’s progress, both socially and artistically. He described Student as showing noticeable improvement after a slow start. Student went from refusing to acknowledge Lewis’s greetings to engaging him in conversation. Lewis allowed Student to choose her seat in the art class. Lewis had a variety of seating available from single tables to tables where groups worked side by side. Student chose the biggest table. She was an active participant in the group at her table and had friends in the class. Lewis did not modify the art curriculum or change the way he provided the instruction for Student. Student initiated work, followed directions, planned and executed her art projects, and submitted work as required. Student only occasionally sought assistance from her aide.

Participation in the art class also gave Student a means of expanding her social interactions beyond the art class. Lewis discovered that Student gave her artwork to the campus supervisors after it was graded. The campus supervisors created a gallery of her work in their office. Student was proud of her work and happy in his class. The evidence established that Student was gaining both academic and non-academic benefit from her general education classes and was able to function in the class with infrequent interaction with her aide.

Student was moving into the final months of seventh grade when the IEP team finalized the February 26, 2020 IEP offer. Student had only one more year of middle school and had made several positive relationships with students and staff members across campus. The outcome of Student’s recent triennial testing, combined with Student’s class performance, showed that Student’s functional skills and academics were improving. Student was not as far behind her TBIC classmates academically as she had been the prior year. TBIC had also been restructured so that a more diverse mix of students was included.

Given the information regarding Student’s changes and the program changes, Capistrano offered two classes of TBIC; two classes of SAI Mod, for English and Math and 2 general education classes in Art and P.E.. Capistrano had also restructured their aide classification system by the time of the February 26, 2020 IEP offer, changing the way program support was identified in IEPs. The February 26, 2020 IEP offered a Level 4, one-to-one aide, the most experienced, to work with Student during her SAI Mod classes. A Level 3 one-to-one aide would accompany Student to her general education classes.

Parent refused to consent to the February 26, 2020 IEP. Parent wanted Student to attend Ocean View, a non-public school. Student submitted no evidence of the details of Ocean View’s educational program. Nor did Student submit evidence that Ocean View included typically developing students. However, even had Student proven Ocean View was a better program, “In resolving the question of whether a school district has offered a FAPE, the focus is on the adequacy of the school district’s proposed program, not that preferred by the parent.” (Gregory K. v. Longview School Dist. (9th Cir. 1987) 811 F.2d 1307, 1314.)

The shared opinion of the Capistrano IEP team members and Student’s independent assessor was that Student was ready to move to a less restrictive environment. The evidence established that Student was benefitting from her interaction with typically developing peers and was meeting the behavioral expectations of the larger general education classes while still being able to access her education.

Student was not interfering with the education of her classmates in the general education classes and they benefited from interacting with her. Ocean View was more restrictive than TBIC, which Capistrano considered its most restrictive classroom, as no interaction with general education peers would be available to Student.

Student did not prove that she required a more restrictive environment than was offered in the February 26, 2020 IEP in order to access her education. State and federal special education law prohibit Student from being removed from the public school environment unless the nature or severity of the her disability could not be satisfactorily served on the public school campus with the use of supplementary aids and services, curriculum modification and behavioral support. (Ed. Code § 56364.2 subd. (a).) Student failed to prove the program support offered in the February 26, 2020 IEP was inadequate to allow Student to be served on the public school campus. Student did not meet her burden of proving Capistrano denied her a FAPE by failing to offer an appropriate placement in the least restrictive environment.


As required by California Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided.

  1. Capistrano Unified School District did not deny Student a free appropriate public education, or FAPE, by failing to appropriately assess all areas of suspected disability during the triennial assessments discussed during the February 26, 2020 IEP, specifically, thoroughly assessing auditory processing or adaptive behavior. Nor did Capistrano fail to conduct a thorough functional behavior assessment. Capistrano prevailed on this issue.

  2. ]Capistrano Unified School District did not deny Student a FAPE during the 2019-2020 school year, by failing to offer an educational placement that met

Student’s needs in the least restrictive environment. Capistrano prevailed on this issue.


Student’s request for relief is denied.


This is a final administrative decision, and all parties are bound by it. Pursuant to Education Code section 56505, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within 90 days of receipt.



Administrative Law Judge

Office of Administrative Hearings

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CAPISTRANO UNIFIED SCHOOL DISTRICT, Plaintiff-Appellant/Cross-Appellee, v. S.W. and C.W., on behalf of their minor child, B.W., Defendants-Appellee

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