The Disability Law & Policy e-Newsletter
An electronic publication of
The Law, Health Policy & Disability Center at the
University of Iowa College of Law
http://disability.law.uiowa.edu/
and
The Burton Blatt Institute at Syracuse University
http://bbi.syr.edu
April 3, 2012
Volume 9, Issue 2
The Disability Law & Policy Newsletter is a monthly publication that aims to inform disability advocates, scholars, and service providers of the most current issues in disability law, policy, research, best practices, and breaking news.
Dear Colleague:
Below is a topical overview of the items presented in this issue.
A. CIVIL RIGHTS: Americans with Disabilities Act (ADA), Sections
504 & 508 of the Rehabilitation Act, and state civil rights law
B. EDUCATION: Special education & youth transition to
successful postsecondary outcomes
C. TECHNOLOGY / TELECOMMUNICATIONS: Assistive, information,
and communication technologies
D. HEALTHCARE / BENEFITS: Social Security Income / Social Security Disability
Income / Medicaid & Medicare
E. WORKFORCE: Workforce Investment Act (WIA), Ticket to Work
and Work Incentives Improvement Act (TWWIIA), & Vocational Rehabilitation
F. INDEPENDENCE: News for and about the Independent Living
Movement
G. EMERGENCY RESPONSE / PREPAREDNESS: Disaster mitigation and preparedness news
H. INTERNATIONAL: News for and about disability topics
outside the U.S.
I. MISCELLANEOUS: News and topics may vary
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A. CIVIL RIGHTS
1. Class Action Lawsuit Challenges Sheltered Workshops for Oregonians with Disabilities
On January 25, 2012, the Oregon chapter of the Cerebral Palsy Association and eight individuals with intellectual and developmental disabilities brought a class action lawsuit against the state of Oregon. The suit alleged that Oregon has violated the Americans with Disabilities Act and Rehabilitation Act because of its "over-reliance on sheltered workshops and its failure to timely develop and adequately fund integrated employment services." According to the lawsuit, because the state programs have failed to help individuals in the programs find mainstream employment; thousands of Oregonians with disabilities are segregated and stuck in dead-end jobs in the sheltered workshops. Funded by state and local agencies as well as nonprofit groups, the sheltered workshops provide jobs to people with disabilities that require unskilled labor and workers are generally paid less than minimum wage. Critics also say that sheltered workshops perpetuate a stereotype that individuals with disabilities cannot succeed at "real work."
The plaintiff class will include several thousand individuals with mental and physical disabilities qualified for integrated employment and programs to facilitate mainstream jobs. Currently, 2,300 people with disabilities are segregated in sheltered workshops in Oregon at any given time, and are usually paid below minimum wage and given no interaction with non-disabled peers or opportunities for integrated employment. The lawsuit cited studies that found that sheltered workshops are up to three times more expensive than the provision of employment support services. The Oregon Department of Justice issued a statement claiming that the state was working "to improve its services to the developmentally disabled, including assistance with employment opportunities for the disabled in the broader community."
Full Story: Teresa Carson, Lawsuit Challenges 'Sheltered Workshops' for Oregon's Disabled, Reuters.com, Jan. 25, 2012, available at
http://www.reuters.com/article/2012/01/26/us-oregon-disabled-lawsuit-idUSTRE80P07G20120126
2. Advocacy Group Files Class Action Suit against New Hampshire for Institutionalization
On February 9, 2012, the Disability Rights Center (DRC) filed a class action lawsuit in a U.S. District Court against the state of New Hampshire and Governor John Lynch for the needless institutionalization of adults classified as having serious mental illness. The suit alleges that the state's treatment of patients at the New Hampshire Hospital and the Glencliff Home, a home for people with disabilities in New Hampshire, violates the Americans with Disabilities Act, the Rehabilitation Act of 1973, and the Nursing Home Reform Act. The suit follows a finding by the Obama administration last April that the state has failed to place individuals with disabilities in the most integrated setting.
Attorney General Michael Delaney criticized this finding last fall, since the state had already declared its mental health system in crisis and was "moving aggressively to make improvements as much as is allowed" during the slow economy and restrictive budget. However, the New Hampshire Hospital's admission rate is 40 percent higher than, and the readmission rate is nearly double than, the national average. Additionally, in 2010, over 15 percent of the patients discharged were readmitted within 30 days and nearly one third were readmitted within 180 days. People in psychiatric crisis can wait for hours in a nursing room before receiving care. Moreover, the DRC concluded that the state could treat the adults who are affected in the community at much lower cost than is currently spent. The group filed the lawsuit this month accordingly, alleging that the state has not adequately moved to make these changes.
Full Story: Kevin Landrigan, Disability Advocacy Group Files Class Action Suit against State, Nashua Telegraph, Feb. 9, 2012, available at
http://www.nashuatelegraph.com/newsstatenewengland/949506-227/disability-advocacy-group-files-class-action-suit.html
3. DOJ Settles ADA Lawsuit with Michigan's Henry Ford Health SystemOn February 1, 2012, the Justice Department (DOJ) announced a settlement with the Henry Ford Health System to ensure effective communication with individuals who are deaf or hard of hearing in the provision of medical services as required by the Americans with Disabilities Act (ADA). This settlement resolved a complaint alleging that the Henry Ford Health System failed to provide sign language interpreters to a deaf patient and his family members who are also deaf for effective communication with health care providers at one of its in-patient psychiatric facilities.
The complaint alleged that because the hospital failed to provide interpreter services, a deaf individual was denied the benefit of effective communication with hospital staff, the opportunity to effectively participate in medical treatment decisions, and the full benefit of health care services provided by the hospital. The DOJ reviewed the system as a whole and determined that it did not provide deaf and hard of hearing patients with auxiliary aids and services sufficient to guarantee effective communication throughout their medical treatment as required by the ADA. When medical services provided by hospitals involve long, important, or complex oral communication with patients or their families, hospitals are generally required to provide sign language interpreters to ensure effective communication. This settlement agreement requires the health system to provide training to hospital staff regarding ADA requirements, to comply with ADA requirements by adopting policies and procedures, and to appoint ADA administrators and facilitators at each facility to ensure access to auxiliary aids and services. The agreement also provides for a settlement fee of $70,000 to family members who were denied effective communication.
Full Story: Justice Department Settles Americans with Disabilities Act Lawsuit with Michigan's Henry Ford Health System, Department of Justice Office of Public Affairs, Feb. 1, 2012, available at
http://www.justice.gov/opa/pr/2012/February/12-crt-149.html
4. New Hampshire Limits Welfare Grants for Residents Receiving SSI Benefits
New Hampshire is now including Supplemental Security Income (SSI) in calculating the welfare grant for residents who are unable to work due to a disability. Under this new formulation, 1,136 of the 5,600 families in New Hampshire that receive welfare assistance will lose their welfare assistance entirely, and the grant will be reduced for an additional 420 families, according to state Family Assistance Director Terry Smith. This new law will also result in more losses including 103 people with disabilities losing their monthly grant from the state and 260 losing $80 per month.
Idaho is the only other state that currently allows SSI income to be calculated into household income when determining welfare eligibility, according to Liz Schott, senior fellow at the Center on Budget and Policy Priorities. Wisconsin and Alaska count some SSI income in welfare determinations, but only under limited circumstances. Last year, Washington welfare officials attempted implement a similar system and closed off welfare eligibility to 7,500 families before they were halted by litigation and legislation. Minnesota, West Virginia, and North Carolina likewise attempted or considered counting SSI income in the calculation of welfare grants but ultimately rejected the policy, said Schott.
The decision was made to include SSI as income when determining eligibility to save money for the state as a whole, although such a system penalizes the most vulnerable families. Michael Skibbie, policy director at the Disabilities Rights Center in New Hampshire, noted, "these benefit levels are fractions of what you or I would consider necessary for a reasonable life. People are realistically concerned about becoming homeless.''
Full Story: Norma Love, NH Joins Idaho in New Welfare Limits for Disabled, Alaska Journal of Commerce, Feb. 21, 2012, available at
http://www.alaskajournal.com/Alaska-Journal-of-Commerce/AJOC-February-19-2012/NH-joins-Idaho-in-new-welfare-limits-for-disabled/
B. EDUCATION
1. New York State Proposes a New Credential Certificate to Replace IEP Diplomas
New York State recently approved a new type of credential certificate called the Skills and Achievement Commencement that will replace the current Individualized Education Plan (IEP) diploma. An IEP is a personalized education plan that is made for all students who are classified as having a disability under the Individuals with Disabilities Education Act (IDEA). The new certificate will list credentials that the student accumulated at school but would not equal a diploma, i.e., it would not help the student apply to college or to the military.
Parents, educators, and experts have given the certificate mixed reviews. The Superintendent of the Jefferson-Lewis BOCES program, Jay Boak, believes that the certificate provides more clarity and organization and additionally "provide[s] parents, students and most importantly employers with more definitive information of what kind of program the student had while they were in school, and what kind of skills they have once they leave school." Alternatively, Jefferson County Legislator Phil Reed said that he "fear[s] that people will just drop out of school. Why put in the time if you're not going to be rewarded for it. And who wants to put in 15 years of school to get a certificate?"
Full Story: Amanda Kelley, Diplomas for Disabled Students Changing, Your News Now, Jan. 24, 2012, available at
http://centralny.ynn.com/content/top_stories/571337/diplomas-for-disabled-students-changing/
2. ABA Asks that Admissions Tests Accommodate People with Disabilities
The American Bar Association (ABA) is holding entities that administer law school admissions exams accountable for also administering appropriate accommodations to test-takers with disabilities. It is the hope that appropriate administration of accommodations will ensure more accurate exam results. At the ABA's policy-making House of Delegates meeting on February 6, 2012, there was a vote in favor of Resolution 111, which urges entities that administer, score, or report the results of a law school admission test to establish consistent procedures that do not differentiate on the basis of an applicant's accommodations or lack thereof. The main sponsor of this resolution was the ABA Commission on Disability Rights.
Full Story: ABA Says Law School Admission Tests Should Accommodate People With Disabilities, Feb. 8, 2012, available at
http://www.abanow.org/2012/02/aba-urges-law-school-admission-tests-to-accommodate-people-with-disabilities/
C. TECHNOLOGY / TELECOMMUNICATIONS
1. New Cell Phone Application Crowd-Sources Community Accessibility Information
A popular new cell phone application, named "Access Together," recently became available for popular mobile devices such as the iPhone and Android and Blackberry devices. The application, currently in its early stages, was developed to allow cell phone users to "check-in" from various locations--such as stores, restaurants, public facilities, and supermarkets.--and answer pre-set questions determining the extent to which a location is accessible to individuals with disabilities. Users can tap into a database of venues in their community, answer questions based on their experiences in that venue, and then upload the answers to a publicly searchable, "crowd-sourced" information database.
The goal of the application is to offer information to users about the accessibility of local businesses and venues, and also to provide incentives for the owners of these businesses to take appropriate accessibility measures.
Full Story: Michelle Diament, Prize-Winning App Helps Users Spot Accessible Places, Disability Scoop, Jan. 3, 2012, available at
http://www.disabilityscoop.com/2012/01/03/prize-winning-app/14704/
2. Braille-Implementing Device for Cell Phones Offers Ease, Speed, and Accessibility
A new smartphone application, named "BrailleTouch," offers increased text-messaging accessibility for individuals who are blind or have visual impairments who use buttonless touch-screen phones. The system, which was designed for blind individuals or individuals with low vision, eliminates the need to purchase expensive Braille-conversion keyboards by integrating six touch-screen buttons. Users press combinations of these buttons to form characters, which are then read aloud by the application. The buttons are located at the edge of the screen and the user does not need to view the screen to utilize the system.
In addition to making touch-screen phones more accessible to individuals with visual impairments, the co-creators of the application are touting it as a universally useful product as it allows individuals to text without looking at the screen. Developers claim that the product allows for faster typing than the traditional QWERTY keyboard format (most common modern keyboard format). The application is free and will be available for the iOS and Android systemswithin a month.
Full Story: John D. Sutter, Can Braille Be Faster than QWERTY? App Developer Thinks So, CNN, Feb. 20, 2012, available at
http://whatsnext.blogs.cnn.com/2012/02/20/can-braille-be-faster-than-qwerty-app-developer-thinks-so/?hpt=hp_bn6
D. HEALTHCARE / BENEFITS
1. New Regulations Require Health Insurers to Use Clear Language in Describing Benefits
On February 9, 2012, the Department of Health and Human Services (HHS) published final regulations requiring health insurers to use clear and consistent language when providing consumers with information about their health plan benefits and coverage. According to HHS Secretary Kathleen Sebelius, the new regulations will make it easier for consumers and employers to compare one plan directly to another when shopping in the healthcare market. Two documents that ensure consumers better understand their health care choices are key to the regulations: 1) a short Summary of Benefits and Coverage (SBC), and 2) a uniform glossary of commonly used health care terms such as "deductible" and "co-payment." Health insurers must provide an SBC to consumers at specific points in the enrollment process, such as upon application and at plan renewal.
HHS issued the proposed rules for the plain language regulations in August of 2011. Since then, HHS received comments from numerous patient advocates, including groups that represent patients with disabilities and those with limited English proficiency.
Full Story: Department of Health and Human Services, Health Reform to Require Insurers to Use Plain Language in Describing Health Plan Benefits, Coverage, Feb. 9, 2012, available at
http://www.hhs.gov/news/press/2012pres/02/20120209a.htmlSee Also: Consortium for Citizens with Disabilities, RE: Proposed Rule and Notice for Comment on Summary of Benefits and Coverage and Uniform Glossary, Oct. 21, 2011, available at
www.dol.gov/ebsa/pdf/1210-AB52-0242.pdf
2. Government Issues Challenge to Create Accessible Health Technologies
The Office of the National Coordinator for Health Information Technology (ONC), a division of the Department of Health and Human Services, is calling for teams to create and test a program that makes it easier for consumers with disabilities to access the health data stored in their electronic health records. New health information technologies can improve health outcomes and coordination of care for people with disabilities, but ONC is concerned about the inaccessibility of existing tools that implement these new technologies. This concern led ONC to sponsor this accessibility challenge. In particular, ONC is looking for a program that is simple to install and learn to use and that can identify and link to relevant local or online communities and organizations. The submission must also comply with relevant law, including Section 508 of the Rehabilitation Act which requires Federal agencies' electronic and information technology to be accessible to people with disabilities.
ONC is accepting submissions until July 23, 2012, and winners will be notified on August 13, 2012. First prize in the challenge is $60,000 and an opportunity to implement the winning program.
Full Story: Office of the National Coordinator for Health Information Technology, EHR Accessibility Module Challenge, Feb. 10, 2012, available at
http://www.health2challenge.org/ehr-accessibility-module/
3. Child Denied Liver Transplant Possibly Due to Intellectual Disability
Chrissy and Joe Rivera accused a doctor at the Children's Hospital of Philadelphia (CHOP) of denying their daughter's liver transplant based on her disability. Amelia, the Riveras' daughter, has Wolf-Hirschhorn syndrome, which causes physical and cognitive disabilities. Chrissy reported that the unnamed doctor stated Amelia couldn't receive the transplant based on Amelia's quality of life. This issue became public on January 12, 2012, when Chrissy blogged about it on www.wolfhirschhorn.org.
In response to Chrissy's post and the public outcry, CHOP issued a statement claiming to have done many successful transplants on children with disabilities and states it does not discriminate against children with disabilities. The hospital replied to the comments on its Facebook page by writing, "We're listening. ... Please know that you have been heard and that your feedback is appreciated." The hospital added that it "does not disqualify potential transplant candidates on the basis of intellectual abilities" and that it is "deeply committed" to providing the best possible medical care for all children, including those with disabilities.
In a follow-up meeting at CHOP, doctors told the Riveras that they would now consider a transplant for Amelia. Amelia still has to go through a lengthy screening process to determine if she's a good transplant candidate, but her parents have stated that they knew it would be a long process and are ready to move forward.
Full Story: Michelle Diament, Claim: Girl Denied Transplant Because She's 'Mentally Retarded,' Jan. 17, 2012, available at
http://www.disabilityscoop.com/2012/01/17/claim-girl-transplant/14777/h
E. WORKFORCE
1. 2011 Employment Discrimination Data
New data from the U.S. Equal Employment Opportunity Commission (EEOC) shows that in 2011 job discrimination complaints were at an all-time high for the sixth straight year. The EEOC report shows that nearly 100,000 claims were filed, 25,742 of which were based on disability discrimination, the highest number reported since enforcement began. The number of last year's disability-based complaints increased 2.3 percent from 2010. Since 2005, disability related complaints have doubled.
Disability discrimination complaints brought under the Americans with Disabilities Act (ADA) produced the highest increase in monetary relief among all forms of discrimination. Administrative relief (money) obtained for disability discrimination increased by almost 35.9 percent to $103.4 million compared with $76.1 million in the previous fiscal year. Of all types of disability claims, back impairments were the most frequently cited impairment under the ADA, followed by other orthopedic impairments, depression, anxiety disorder and diabetes.
Some experts believe that some of the increase in complaints is the result of growing diversity in the workforce and may correspond with a weak job market. An EEOC spokesperson stated that employers "may begin enacting policies to save time or money that have an unlawful disparate impact on certain protected groups." In all discrimination claims, victims received a settlement in about 18 percent of those EEOC discrimination claims, while two thirds were found to be groundless.
Full Story: Private Sector Bias Charges Hit All-Time High, Equal Employment Opportunity Commission, Jan. 25, 2012, available at
http://www.eeoc.gov/eeoc/newsroom/release/1-24-12a.cfmSee Also: Job Bias Claims in U.S. at Record Level, USA Today, Jan. 24, 2012, available at
http://www.usatoday.com/money/workplace/story/2012-01-24/jobs-discrimination/52763392/1Andrew Chow, Job Discrimination Complaints Hit All-Time High, FindLaw, Jan. 25, 2012, available at
http://blogs.findlaw.com/free_enterprise/2012/01/job-discrimination-complaints-hit-all-time-high.html
F. INDEPENDENCE
1. Virginia to Close Institutions for Individuals with Intellectual Disabilities
A settlement between the Department of Justice (DOJ) and Virginia is requiring the closure of four institutions. This settlement arose after the DOJ conducted a three-year investigation, which revealed that Virginia unnecessarily warehoused individuals with intellectual and developmental disabilities instead of allowing them to live in the most integrated setting appropriate. The investigation also exposed that discharges from the institutions were seldom and that many others were at risk of being forced into an institution because Virginia has limited community-based options. As a result of the settlement, Virginia will expand community-based care and the state will transition individuals from the institutions and into the community-based programs. Virginia plans to close the first institution by 2014 and close all four institutions by the year 2020, leaving only one institution for individuals with developmental and intellectual disabilities open in the state.
Full Story: Dena Potter, Virginia Must Close Four of Its Five 'Training Centers' for the Disabled; Southeastern Virginia Will Stay Open, Daily Press, Jan. 27, 2012, available at
http://www.dailypress.com/health/dp-nws-training-centers-for-the-disbled-20120127,0,4009287.story
2. Advocates Concerned Fewer Inspectors for Assisted Living Centers May Lead to Abuse
Even though budget cuts are reducing the number of inspectors for assisted living centers in Texas, the number of assisted living centers is expanding. Assisted living centers are supposed to provide a more independent living option for individuals who do not want or need nursing home care. Industry representatives are nervous that the existence of fewer inspectors will put individuals living in assisted living centers at the risk of less oversight and more abuse. Inspectors will only visit the assisted living centers every 18-24 months, instead of annually. Advocates believe the time gap between inspections will lead to serious health and safety problems. For example, an inspector who recently visited an assisted living center found a woman with bruises on her forearm. Fellow residents reported that the woman's caregiver threw the woman, struck her, and dragged her into the hall. Additionally, the inspector found bedbugs in many of the residents' beds. There are also incidents of sexual abuse and other crimes in the assisted living centers.
Full Story: Renee C. Lee, Budget Cuts Spell Fewer Inspections at Assisted Living Facilities, Houston Chronicle, Jan. 30, 2012, available at
http://www.chron.com/nws/houston-texas/article/Budget-cuts-spell-fewer-inspections-at-assisted-2828809.php
G. EMERGENCY RESPONSE / PREPAREDNESS
1. Global Conference Highlights Importance of Inclusion in Emergency Planning
On January 22-24, 2012, the Fifth International Shafallah Forum took place in Doha, Qatar, hosted by the Shafallah Center for Children with Special Needs. The forum, titled "Conflict, Crisis, and Disability: Ensuring Equality," emphasized the need for governments to make persons with disabilities a priority in all areas of public assistance, especially in emergency response. Addressing representatives from over fifty countries, which included first ladies, policymakers, educators, persons with disabilities, and humanitarian relief organizations, host Hassan Ali cited evidence-based research, raised awareness, and the "Shafallah Declaration" as crucial efforts as means of creating more inclusive communities. The declaration highlights the principles of non-discrimination, equality and inclusion as key motivators in all humanitarian efforts. In a panel discussion, Badaoui Rouhban, director of UNESCO Section for Disaster Reduction, called for countries and non-governmental organizations to invest in disaster preparedness for persons with disabilities, or they will ultimately end up paying more in disaster response.
Full Story: Engage Persons with Disability in Emergency Plans, Jan. 24, 2012, available at
http://bdnews24.com/details.php?id=216769&cid=2See Also:
http://www.shafallahforum.org/
H. INTERNATIONAL
1. Disability Benefit Cards Issued in Pakistan
On February 11, 2012, the government of the Pakistani province of Sindh began disbursing benefit cards to people with disabilities. Currently, the burgeoning project has an experimental status, and 100 people with disabilities will be issued cards in Karachi, Pakistan's largest city.
Roshan Ali Shekh, Karachi Commissioner, said, "Our target is to issue cards to 10,000 disabled persons and once the process completes in Karachi, it will be started in other parts of the province." The implementation of the card is intended to make Karachi a "disabled-friendly city," to set aside two percent of government jobs for people with disabilities, and to begin a disability awareness program. Additionally, the card is meant to give people with disabilities access to facilities that satisfy "international standards" for accommodation of disability.
Full Story: For Handicapped in Sindh, a 'Card' with a Silver Lining, Feb. 10, 2012, available at
http://www.pakistantoday.com.pk/2012/02/for-handicapped-in-sindh-a-%E2%80%98card%E2%80%99-with-a-silver-lining/
2. ECHR Finds Violations in Bulgarian Homes for People with Mental Disabilities
On January 17, 2012, the Grand Chamber of the European Court of Human Rights (ECHR) found unanimously that Bulgaria violated several articles of the Convention for Protection of Human Rights and Fundamental Freedoms. The plaintiff, Rusi Stanev, said he was held against his will in a "decaying, dirty, and rarely heated" home after being misdiagnosed with schizophrenia. Krasimir Kanev, the head of the Human Rights Bulgarian Helsinki Committee, said that the case "must trigger reforms of the [social care home systems for individuals with mental disabilities] and the whole judicial disability notion in Bulgaria and the other east European countries, where the situation is similar."
In light of the decision reached by the ECHR, Bulgaria pledged to shut down its institutional homes for people with intellectual disabilities. "A strategy of closing [homes] for adults [with mental disabilities], currently being worked out, will happen over a period of 10 years at least," stated Valentina Simeonova, Deputy Social Affairs Minister. Approximately 4,000 adults and 1,200 minors live in around 50 such institutions across Bulgaria.
Full Story: Bulgaria Pledges to Shut Mental Homes, EUbusiness, Feb. 6, 2012, available at
http://www.eubusiness.com/news-eu/bulgaria-rights.f09?utm_source=twitterfeed&utm_medium=twitterSee Also: Case of Stanev v. Bulgaria, European Court of Human Rights, Jan. 17, 2012, available at
http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=84982358&skin=hudoc-en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=95713&highlight=
ANNOUNCEMENTS
The staff of the Disability Law & Policy e-Newsletter welcomes suggestions for announcements incorporating a focus on disability law or policy in forthcoming issues. If you would like to bring calls for papers or proposals, conferences or events, book announcements, new resources, or scholarship, fellowship or internship competitions to our attention, please send them to mailto:dlpannounce@law.syr.edu. Thank you.
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The Disability Law & Policy e-Newsletter is the collaborative product of Editor-in-Chief David W. Klein, Ph.D., Executive Editor William N. Myhill, M.Ed., J.D.; Senior Editor Kelly J. Bunch, J.D.; and Associate Editors Brandon Sawyer, Matthew Saleh, Dana Mele, Tovah Miller, Jonathan Schnader, Stephanie Woodward, Robert Borrelle, Jr., Brandon Hill, and Paris Peckerman.
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