UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MUNDO VERDE PUBLIC CHARTER SCHOOL, Plaintiff,

v. Civil Action No. 22-2290 (CKK)

DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION (September 28, 2023)

Pending before this Court are Cross-Motions for Summary Judgment by Mundo Verde

Public Charter School and the District of Columbia.1 More specifically, Plaintiff Mundo Verde

Public Charter School (“Plaintiff” or “Mundo Verde”) moves this Court to reverse the May 5,

1 In connection with this Opinion, the Court considered the Mundo Verde’s [12] Motion for Summary Judgment and Memorandum of Points and Authorities in support thereof (“Pl.’s Mot.”); the District’s [consolidated] [14] Opposition to Mundo Verde’s Motion (“Def.’s Opp’n”) and [15] Cross Motion for Summary Judgment (“Def.’s Cross Motion”); Mundo Verde’s [17] [Consolidated] Opposition to the Cross Motion and Reply in support of Motion for Summary Judgment (“Pl.’s Reply”); the District’s [18] Reply to Plaintiff’s Opposition to its Cross Motion (“Def.’s Reply”); the [11] Administrative Record (“AR”); and the entire record in this case. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).

1 2022 Hearing Officer’s Determination (“HOD”), which was issued in the form of an Order

underlying administrative action, while the District moves this Court to affirm the HOD. The

Hearing Officer determined that the District of Columbia (“Defendant” or “the District”) is not

required to provide to J.P. – a minor and student receiving special education services at Mundo

Verde – bus transportation services between his Virginia school and J.P.’s father’s Maryland

home, when J.P. stays with his father. Upon consideration of the motions, oppositions, and the

record in this case, the Court DENIES Mundo Verde’s [12] Motion for Summary Judgment and

GRANTS the District’s [15] Cross Motion for Summary Judgment. A separate Order

accompanies this Memorandum Opinion.

I. BACKGROUND

A. Factual Background

The following facts are undisputed by the parties. Mundo Verde is a public charter school

located in the District of Columbia, where J.P. was enrolled during second grade, Administrative

Record (“AR”), ECF No. 11-1, at 61, and it is J.P.’s local education agency (“LEA”). AR at 4-

5.2 J.P. is a student who is eligible for special education under the Individuals with Disabilities

Education Act (“IDEA”),

et seq. AR at 5, 61, 68. J.P.’s September 17, 2021

Individualized Education Program (“IEP”) identified a non-public special education day school

as his least restrictive environment. AR at 5, 61, 68. Subsequent to an October 25, 2021 HOD

that concluded that J.P. required placement in a more restrictive environment than Mundo Verde

could provide, AR, at 94, 153-168, the Office of the State Superintendent of Education (“OSSE”)

2 The Court references the page numbers assigned by the Electronic Case Filing (“ECF”) system. 2 issued a location assignment to CARD Academy on December 1, 2021. AR at 6, 63, 117.

While J.P. was enrolled at Mundo Verde, which served as his LEA, he began attending

CARD Academy in Alexandria, Virginia, on January 10, 2022. AR at 6. The placement at CARD

Academy is funded by OSSE, which is responsible for paying the costs of education, including

special education and related services, of students with disabilities who have been placed in

nonpublic special education schools under certain conditions. AR at 6 (citing

-

2561.03(c)). Because J.P. must attend a specialized program outside of Mundo Verde,

transportation was added to his IEP as a related service. AR at 5, 61, 92. More specifically, J.P.’s

IEP notes:

1) Behavioral intervention needs: . . . is a student with Autism Spectrum Disorder, and he requires a 1:1 dedicated bus aide (he receives one in school as well). He has constant non- compliance and elopes. He often spaces out and play acts internal action scenes. 2) Specialized equipment: specialized seatbelt. . .

AR at 5, 92.

J.P.’s parents share joint physical and legal custody pursuant to a November 19, 2021

custody order issued by the Superior Court of the District of Columbia, and they alternate custody

every week. AR at 5, 62, 97. J.P.’s father resides in Prince George’s County, Maryland, while

his mother resides in the District of Columbia, and for school enrollment purposes, J.P. is a bona

fide resident of the District of Columbia and lawfully enrolled in a District of Columbia LEA.

AR, at 5, 62.

B. Transportation Services

OSSE is the state education agency (“SEA”) in the District of Columbia, and as such, it is

responsible for providing the related service of transportation to students with disabilities in the

3 District.3 OSSE has promulgated a Special Education Transportation Policy (“Transportation

Policy”) to establish a uniform system of standards and procedures for special education

transportation services in the District. AR at 62, 105. OSSE’s Transportation Policy, last updated

on November 6, 2013, states in relevant part:

b) . . . OSSE DOT shall provide special education transportation services to students with disabilities when transportation is appropriately identified and documented on an IEP as a related service under the IDEA.

* * * d) LEAs are responsible for reimbursement costs related to the provision of special education transportation services that arise out of court orders or HODs that determine that the LEA has failed in its obligation to provide FAPE. If a court order or HOD finds that the student has been denied FAPE by the LEA which is attributable to a failure by OSSE DOT to provide special education transportation services in accordance with the student’s IEP, OSSE DOT will be responsible for reimbursing the transportation costs in accordance with the order or HOD.

e) Pick-Up and Drop-Off Locations and Times. OSSE DOT will provide one round trip from each student’s residence in the District of Columbia to the student’s attending school per school day. The student’s address provided to OSSE DOT shall match the address used to establish District of Columbia residency. OSSE DOT will not change a student’s route to accommodate the student or parent for personal reasons (e.g. accommodations of non- FAPE related childcare, one-time or sporadic changes in pick-up or drop-off locations for the student’s or parent’s convenience). Parents are responsible for making their own arrangements for days that the student needs pickup and drop-off services from locations other than the address on record with OSSE DOT.

AR at 105-112 (as set forth in Plaintiff’s Statement of Undisputed Facts, ECF No. 12-1).

Pursuant to District law, for the purposes of the Uniform Per Student Funding Formula,

3 The parties acknowledge that J.P. was a bona fide resident of the District of Columbia for school enrollment purposes, as his mother resided in the District. See AR at 5. Under the IDEA and its implementing regulations, “related services” include “transportation and such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education . . .”

(26); see also

(a). Transportation is defined to include “travel to and from school and between schools, . . .”

(c)(16). 4 transportation of students with disabilities and payment of tuition for private placements are

considered state level costs, AR at 63;

(12), § 38-2907, and as such, OSSE

funds these special education and related (transportation) services for a student with disabilities

when the student is placed in a nonpublic special education school. AR at 63. J.P.’s placement at

CARD Academy was funded by OSSE. AR at 63, 94. Mundo Verde (in its role as J.P.’s LEA)

reached out to OSSE’s Department of Transportation (“DOT”) in early December 2021, to

determine whether OSSE DOT would provide transportation, pick-up and drop-off, from the

father’s home in Prince George’s County, Maryland. AR at 63, 120-125. OSSE informed Mundo

Verde that it would only provide transportation to and from the mother’s District of Columbia

address and would not provide transportation to and from the father’s address in Maryland. AR

at 63, 120-125.

During the 2021-2022 school year, while J.P. was attending CARD Academy, Mundo

Verde provided an Uber for J.P.’s father to take J.P. to school in the morning and pick him up in

the afternoon during the weeks J.P. was in his custody. AR at 64. Mundo Verde filed a due

process complaint against OSSE on January 24, 2022, alleging that OSSE denied J.P. a free

appropriate public education (“FAPE”) by failing to provide transportation between the father’s

Maryland residence and the school in Alexandria, Virginia. AR at 16-23. The parties agreed to

brief summary judgment motions, and the Hearing Officer issued his determination in the form of

an Order on Cross-Motions for Summary Judgment dated May 5, 2022. AR at 4-13, see AR 144-

188 (underlying motions). The Hearing Officer found in favor of OSSE, concluding that OSSE

was not obligated to accommodate the parents’ domestic arrangement and that OSSE’s facially

neutral policy, which limited service only to students physically residing in the District, did not

preclude J.P. from receiving a FAPE from OSSE. AR at 13. On August 3, 2022, Mundo Verde 5 filed its [1] Complaint in the instant case, and the parties proposed a briefing schedule for summary

judgment motions which are now ripe for resolution by this Court.

II. STANDARD OF REVIEW

Under the IDEA, a party aggrieved by a hearing officer’s determination may bring a civil

action in any state court of competent jurisdiction or in a district court of the United States.

(i)(2)(A). A court reviewing an administrative IDEA determination “shall grant

such relief as the court determines is appropriate,” based upon “a preponderance of the evidence.”

(i)(2)(C); see also Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist.,

Westchester Cty. v. Rowley,

, 205–206 (1982). Courts, however, must refrain from

“substitut[ing] their own notions of sound educational policy for those of the school authorities

which they review.”

. Accordingly, “[c]ourts sitting on an IDEA appeal do not have

unfettered review but must . . . give due weight to the administrative proceedings and afford some

deference to the expertise of the hearing officer and school officials responsible for the child’s

education.” Gill v. District of Columbia,

(D.D.C. 2010) (citing

Lyons v. Smith,

(D.D.C. 1993) (internal quotation marks omitted)).

Furthermore, “a court upsetting [a hearing] officer’s decision must . . . explain its basis for doing

so.” Kerkam v. McKenzie, 862 F.2d at 884, 886 (D.C. Cir. 1988).

“Although motions for review of an HOD are called motions for summary judgment, the

Court does not follow ‘a true summary judgment procedure.’” Middleton v. District of Columbia,

(D.D.C. 2018) (quoting L.R.L. ex rel. Lomax v. District of Columbia,

(D.D.C. 2012)); cf. Fed. R. Civ. P. 56. Rather, in a civil action brought to

challenge a Hearing Officer’s determination pursuant to the IDEA, “[a] motion for summary

judgment operates as a motion for judgment based on the evidence comprising the record and any 6 additional evidence the Court may receive.” D.R. v. District of Columbia,

(D.D.C. 2009). Where, as here, neither party has requested that the Court hear additional

evidence, the motion for summary judgment “is simply the procedural vehicle for asking the judge

to decide the case on the basis of the administrative record.” M.G. v. District of Columbia,

(D.D.C. 2017) (citing Heather S. v. Wisconsin,

(7th Cir. 1997));

Thomas v. District of Columbia,

(D.D.C. 2005) (without new evidence,

“a motion for summary judgment operates as a motion for judgment based on the evidence

comprising the record”).

The party challenging the underlying administrative determination bears “the burden of proving

that the ‘hearing officer was wrong.’” Pavelko v. Dist. of Columbia,

(D.D.C. 2018) (quoting Reid ex rel. Reid v. Dist. of Columbia,

(D.C. Cir.

2005)); see also Kerkam v. McKenzie,

(D.C. Cir. 1988) (same); Schaffer ex rel.

Schaffer v. Weast,

(2005) (finding that the burden of proof in an administrative

hearing concerning an IEP is “upon the party seeking relief”).

III. ANALYSIS

The dispute in this case centers around the Hearing Officer’s determination that OSSE is

not required to provide transportation for J.P. when he is in the custody of his father who lives in

Maryland. Plaintiff argues that “[n]ot only does OSSE have a general responsibility for providing

transportation in accordance with the IEP pursuant to its own policy and DC law, but OSSE also

has explicit responsibility for ensuring that [the student] is provided special education and related

service in accordance with his IEP by virtue of the fact that he is placed in a private, special

education day school.” Pl’s Mot., ECF No. 12, at 8 (referencing

).

7 In this case, the Hearing Officer’s determination relied in part upon North Allegheny School

Dist. v. Gregory P.,

(Pa. Commw. Ct. 1996), which he found to be “virtually identical”

to this case. AR at 13. In Gregory P., the court found that the school district did not violate the

IDEA when it denied the child’s parents’ request that the district deviate from its transportation

policy to accommodate the parental custody arrangement. Gregory P.,

. In that

case as well as in the instant case: (1) the student’s IEP identified transportation as a required

related service; (2) the student’s custody was established by a court order that divided physical

custody evenly between the mother and the father, who lived in different school districts; (3) the

student’s mother lived within the school district while his father lived outside of it; and (4) the

father requested that transportation be provided to his out-of-district address, which was denied by

the school district.

. The court in Gregory P. found that “the additional transportation

requested services [were] not to address any [the student’s] special educational needs, but only to

accommodate the particular domestic arrangements which [the student’s] parents have made . . . ”

and furthermore, that “[m]itigating such hardships . . . is not the purpose of the IDEA . . .”

. Moreover, the court explained that the IDEA “requires that the district provide each

exceptional student with an appropriate education, transportation between his residence and his

school, and additional transportation or other related services where needed to address his

educational needs” but that “does not extend to accommodating all the lifestyle preferences and

personal needs of parents whose children happen to have special educational needs.”

Plaintiff’s attempt to distinguish the analysis in Gregory P is flawed. Plaintiff contends

that because the student in Gregory P. “did not require an out of district placement to meet his

needs,” the request to deviate from the transportation policy in that case was based strictly on the

parents’ domestic arrangement rather than the student’s disability. Pl’s Reply, ECF No. 16, at 2 8 (emphasis added by this Court). The Court notes that this distinction [in the form of an intra-

district transfer] was discussed in Timothy H. v. Cedar Rapids Cmty. Sch. Dist.,

(8th

Cir. 1999), which is another case cited by the Hearing Officer. In Timothy H., the parents elected

to enroll their child in a school “located within the school district, but [that was] not [the student’s]

regularly assigned neighborhood school,” even where the neighborhood school was able to

provide FAPE.

. The school district granted the student’s intra-district transfer request

but notified the student’s parents that its applicable policy stated in relevant part that “[p]arents

shall be responsible for the transportation of students not attending their resident area school . . . ”

After an Administrative Law Judge upheld the school district’s refusal to provide

transportation, the parents appealed to the district court, which held that the policy of refusing to

provide the student with specialized transportation violated the Rehabilitation Act.

. That

ruling was reversed by the appellate court, which found that the student was not discriminated

against based on her disability, as the school district “require[d] that all students, regardless of

their personal transportation situation, provide their own transportation to their school of choice as

a condition of participation in the intra-district transfer program.

.4 Accordingly, the

appellate court found that the establishment of a special bus route for the student at issue would be

“an undue financial burden and a fundamental alteration” in the program.

.

Plaintiff argues that, in the present case, the “only reason the student [J.P.] requires

transportation is because he has been placed at a nonpublic school outside of the District of

4 The appellate court in Timothy H. did characterize the student’s desire to “go to another school” as a matter of “parental preference” when the student’s “neighborhood school ha[d] a special education program that me[t] her needs.”

. 9 Columbia” and therefore, the need to deviate from the transportation policy is “not exclusively the

result of the parents’ domestic arrangement.” Id.; but see AR at 12 (rejecting Plaintiff’s argument

that J.P.’s out-of-state school placement, not his father’s out-of-state residence is the basis for its

request). Defendant explains that “based on their “particular domestic arrangement,” J.P.’s father

here has made a choice to live in Maryland, and, just as in Gregory P., that is a “lifestyle

preference,” that OSSE is not obligated to separately accommodate under its policy or under the

IDEA. Def.’s Reply, ECF No. 18, at 2 (quoting Gregory P.,

). This Court notes

that, in both this case and Gregory P., the request to deviate from the applicable transportation

policy was based ultimately on the parents’ domestic arrangement, and accordingly, the Hearing

Officer’s reliance on Gregory P. was appropriate, as that case is factually on point.

The Hearing Officer relied also on Fick v. Sioux Falls Sch. Dist.,

(8th

Cir. 2003). AR at 7. In Fick, the student suffered from epileptic seizures and was provided with

a nurse-accompanied taxi for her daily transportation between home and school. Fick,

. The parent requested that the student be dropped off at a site outside her neighborhood

school boundary but within the school district.

In Fick, as in the instant case, the school

district’s policy allowed for one pick-up address before school and one drop-off address after

school, as long as both addresses were within prescribed geographical boundaries.

The school

district denied the parent’s request for after school drop-off at an out-of-boundary address, and

upon concluding that the request was made for “personal reasons unrelated to [the student’s]

educational needs,” the Hearing Officer found in favor of the school district.

. The

district court ruled that the school district had not violated the IDEA by refusing to transport the

student to a drop-off address outside her designated cluster boundaries, and the Court of Appeals

for the Eighth Circuit affirmed that ruling.

. Drawing on reasoning from Timothy H. and 10 Gregory P., the appellate court held that “a school district may apply a facially neutral policy to a

disabled child without violating the law when the request for a deviation from the policy is not

based on the child’s educational needs, but on the parents’ convenience or preference.”

The

District asserts, and this Court agrees, that the “conclusion [from Fick] applies with equal force

here.” Def.’s Cross-Mot, ECF No. 15, at 13.

Plaintiff relies, however, on Dist. of Columbia v. Ramirez, 377 F. Supp 2d 63 (D.D.C.

2005), but Defendant asserts that Ramirez is factually inapposite as it focused on “the issue of

whether District of Columbia Public Schools (DCPS) was required to provide a transportation aide

to convey a wheel-chair-bound student from his parent’s apartment door to the bus.” Def.’s Opp’n,

ECF No. 14, at 13 (citing Ramirez, 377 F. Supp. 2d at 66). Plaintiff asserts that the Ramirez court

concluded that a facially neutral policy may be “exempt from review when deviations are requested

for convenience alone,” but not if the deviation from a facially neutral policy is required to meet

the student’s unique educational needs, in which case, exceptions must be made to provide FAPE.

Pl.’s Mot., ECF No. 12, at 10 (quoting Ramirez, 377 F. Supp. 2d at 70). Plaintiff contends that, in

this case, J.P.’s IEP only provided for transportation after the IEP team’s “decision that the student

required placement in a specialized program in order to receive FAPE.” Pl.’s Mot., ECF No. 12,

at 11 (emphasis added by this Court).5 Plaintiff proffers therefore that J.P.’s “educational

placement needs are the basis for the enhanced service request,” as opposed to “parent preference

or convenience,” and accordingly, Plaintiff concludes that this case is comparable to Ramirez.

Pl.’s Mot., ECF No. 12, at 11.

5 When J.P. was enrolled at Mundo Verde, his parents were “responsible for transporting him to and from school[.]” Pl.’s Mot., ECF No. 12, at 11. 11 This Court notes that the Ramirez court distinguished the Fick and Timothy H. cases on

grounds that “[t]hose cases involved children who were regularly attending school, and whose

IEPs were being implemented effectively.” Ramirez, 377 F. Supp. 2d at 70. Moreover, the District

notes that the student in the Ramirez case “had been unable to attend school for two years due to

the transportation dispute with DCPS” and furthermore, the policy in effect was that “the pick-up

and drop-off location for students could either be the door of the residence or the curbside of the

residence” and bus aides were “instructed” to leave the bus to assist the student in boarding.6

Def.’s Opp’n, ECF No. 14, at 13 (citing Ramirez, 377 F. Supp. at 65-66) (emphasis added by

Defendant). The Ramirez court affirmed the Hearing Officer’s determination in favor of the parent

after concluding that the “[student] needs a transportation aide to meet his education needs, rather

than simply to provide convenience for his parents[.]” Ramirez, 377 F. Supp. 2d at 70.

In the instant case, Plaintiff acknowledges that “OSSE may provide services required of it

in a manner that it considers appropriate,

,” but asserts that “it cannot choose

a manner that fails to satisfy the various requirements of the Act and regulations issued pursuant

thereto.” Pl.’s Mot., ECF No. 12, at 11-12 (quoting Ramirez, 377 F. Supp. 2d at 68). The District

contends that OSSE is “not rejecting the provision of transportation services to J.P.’s out-of-state

school placement,” Def.’s Opp’n, ECF No. 14, at 14, as it provides bus transportation between

CARD Academy and the mother’s residence in the District. See AR at 6-7. Rather, OSSE “will

not change a route to accommodate a parent for their personal reasons.” Def.’s Opp’n, ECF No.

6 Defendant notes that “there is no evidence that J.P. has missed significant, or indeed any, stretches of schooling dues to this arrangement [where Mundo Verde reimburses the father for private transportation of J.P. to CARD Academy when J.P. stayed at the father’s residence].” Def.’s Opp’n, ECF No. 14, at 15-16. 12 14, at 14. The District contends that “even if J.P. attended Mundo Verde, or a different non-public

special education day school in the District, OSSE would be obligated to provide transportation to

and from J.P.’s District residence, not that residence and his father’s out-of-state home.” Id.

Plaintiff contests the Hearing Officer’s “focus on the burden that transporting the student

to and from his father’s home in Maryland would impose on OSSE,” Pl.’s Mot., ECF No. 12, at

12 (referencing AR at 12-13). “Clearly, where necessary to some integral part of the student’s

educational needs, a district must provide related services even where this imposes a substantial

burden on the district.” Gregory P.,

. Defendant notes however that this quote from

Gregory P. was made in reference to Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ.,

(5th Cir. 1986), “which held that transportation required as a related service under the

IDEA is not limited by the geographical boundaries of the school district and required the school

district to provide transportation for a child with a disability to attend an out-of-district facility to

receive special education services.” Def.’s Opp’n, ECF No. 14, at 15 (citing Gregory P.,

). But, in this case, the issue is not provision of transportation services to an out-of-boundary

school as J.P. in fact is receiving transportation services. See AR at 13 (“As long as Student resides

in the District, OSSE is committed to providing him transportation services.”) At issue is the

Hearing Officer’s finding that OSSE is not obligated to alter those services to accommodate both

of J.P.’s parents.

In its Reply, Mundo Verde describes this dispute as an “IEP implementation issue” insofar

as “[a] state covered by the IDEA must provide a disabled child with such special education and

related services in conformity with the child’s individualized education program or IEP.” Pl.’s

Reply, ECF No. 17, at 4 (quoting Endrew F. v. Douglas Cnty. Sch. Dist.,

, 390 (2017)

(citation omitted)). Plaintiff argues that a failure to implement claim relies on a demonstration that 13 the “agency has materially deviated from furnishing the services prescribed on the child’s IEP,”

and no “showing of educational harm” is required. Id. (citations omitted). But Plaintiff has not

shown a material deviation from J.P.’s IEP, as OSSE provided transportation services in

accordance with its state-level policy, and furthermore, there is no indication that J.P. missed any

educational services or that his parents bore any cost of the transportation.7

The District asserts that “Mundo Verde is seeking to shift costs it voluntarily undertook as

the LEA to OSSE, the SEA, which is not appropriate under the IDEA.” Def.’s Reply, ECF No.

18, at 4; see Bd. of Educ. of Oak Park & River Forest High Sch Dist. No. 200 v. Kelly E.,

(7th Cir. 2000) (finding that nothing in Section 1415(i) would authorize an award of

financial relief in favor of LEAs). The District asserts that it is “correct that District law allocated

IDEA transportation funding to OSSE;” however, “neither the IDEA, District law, nor OSSE’s

transportation policy contemplate that an LEA may shift additional private transportation costs to

the SEA for services not recognized to be appropriate by the SEA under its own policy regarding

the delivery of transportation services.” Def.’s Reply, ECF No. 18, at 4-5. The Court notes that

Mundo Verde does not rely upon statutory or case law to support its cost shifting proposition, but

rather upon “the Court’s broad equitable discretion.” Pl.’s Reply, ECF No. 16, at 5.

Accordingly, upon consideration of the parties’ arguments, this Court finds that the

Hearing Officer’s reliance on Gregory P. and Fick was not misplaced, and furthermore, the

7 Plaintiff contends that requiring the parents to provide the transportation prescribed in the IEP (at their own cost) “fifty percent of the time is also a violation of the IDEA’s requirement that an appropriate education be provided at no cost to the parents.” Pl.’s Reply, ECF No. 17, at 4 (referencing

(9)). But this contention that the parents had to provide transportation at their own cost during the 2022-2023 school year is not established in the administrative record or any supplemental evidence in this case, and as such, it is not properly before this Court. 14 Hearing Officer did not err in concluding that OSSE’s transportation obligation under its

transportation policy was limited to transportation to and from J.P.’s mother’s residence in the

District. Plaintiff has not demonstrated “that the hearing officer was wrong.” Kerkam v.

McKenzie,

(D.C. Cir. 1988), and therefore, the Hearing Officer’s determination

is affirmed. A separate Order accompanies this Opinion.

DATED: September 28, 2023 ____________/s/__________________ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

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