| A number of opportunities are available for estate planning with life insurance. Many different types of life insurance products are on the market today, including "Term Insurance", "Universal Life Insurance", "Split Dollar Insurance" and "Whole Life Insurance". Depending upon the particular situation, one or more of these products may have a valuable place in your estate plan. "Split Dollar Insurance" provides that a portion of the cost is paid by a business entity, the other portion is paid by another person (e.g., the insured). Payment of a potion of the premiums by the business creates taxable income to the employee-insured. The beneficiary can be the insured, his estate, the business or family members. These policies are useful to provide cash on the death of the insured which can then be available to fund buy-sell agreement in which the employee pays for the term portion of a policy, while the corporation pays for the whole life or investment portion. With each of these products, it is possible to establish an irrevocable life insurance trust during your lifetime so that in the event you die more than three years after the creation of the trust, the insurance proceeds can be excluded from both your taxable estate and from the taxable estate of your surviving spouse. An insurance trust might provide that upon your death, the proceeds from your life insurance policies are to be collected by your Trustees (one of whom can be your spouse) and all of the income from the trust is to be paid to your spouse for life. The Trustees (other than your spouse) could have the right to invade the principal of the trust for your spouses benefit. Upon the death of your spouse, the assets could pass to your successor beneficiaries, such as your children, either outright or in further trust. To the extent that the value of the trust increases during the term of the trust, all of the trust assets, including the appreciation, will pass to the ultimate beneficiaries. If you are presently discussing the possibility of purchasing life insurance, consideration should be given to whether the policy should be owned by an individual or by a trust, as well as the selection of the beneficiaries. A number of advantages and disadvantages of insurance trusts should be considered. Advantages (a) If you die more than three years after the creation of the trust and its funding, the assets in the trust are excluded from your estate. (b) The trust will provide liquidity to help pay the estate taxes and administration expenses that may be payable on your other assets. Disadvantages (a) The trust is irrevocable and the provisions of the trust (including ownership of the policy by the trust), cannot be changed even if circumstances change. Grantor Retained Income Trust ("Grit") This type of trust involves a current gift by you to a trust wherein the "Grantor" (you) retains an income interest for a specified number of years (the "Term") and at the expiration of the term, one or more named beneficiaries receive the assets in the trust, either outright or in further trust. The IRS actuarial tables, which presently assume a 10% return on trust investments, are used to value the remainder interests for gift tax purposes. |
Tuesday, July 17, 2018
Life Insurance Trust
Life Insurance
If you own life insurance on your own life, you may either
(a) designate one or more beneficiaries to receive the insurance proceeds upon your death, or
(b) make the proceeds payable to your probate estate or to a trust created by you during your lifetime or by your will.
If the insurance proceeds are payable to your estate, they will be distributed as part of the general estate in accordance with the terms of your will or, if you die without a will, the distribution will be according to the applicable laws of intestate succession. If the proceeds are payable to a trust, they will be held and distributed in the same manner as other trust assets and may also be free of creditors claims. Insurance proceeds that are payable directly to a minor child will generally necessitate the court appointment of a legal guardian or conservator. This can be avoided by having a trust designated as beneficiary or a custodial account under the state-transfers-to-minors law.
Insurance plays an important role in estate planning and should be coordinated with all other aspects of your estate plan. The laws pertaining to the taxability of insurance proceeds are complex, however, so it is important that all matters pertaining to life insurance be carefully reviewed with your attorney and insurance advisor.
(a) designate one or more beneficiaries to receive the insurance proceeds upon your death, or
(b) make the proceeds payable to your probate estate or to a trust created by you during your lifetime or by your will.
If the insurance proceeds are payable to your estate, they will be distributed as part of the general estate in accordance with the terms of your will or, if you die without a will, the distribution will be according to the applicable laws of intestate succession. If the proceeds are payable to a trust, they will be held and distributed in the same manner as other trust assets and may also be free of creditors claims. Insurance proceeds that are payable directly to a minor child will generally necessitate the court appointment of a legal guardian or conservator. This can be avoided by having a trust designated as beneficiary or a custodial account under the state-transfers-to-minors law.
Insurance plays an important role in estate planning and should be coordinated with all other aspects of your estate plan. The laws pertaining to the taxability of insurance proceeds are complex, however, so it is important that all matters pertaining to life insurance be carefully reviewed with your attorney and insurance advisor.
Friday, July 06, 2018
ABA Summer ReportElder Law Committee Annual 2018 GP Solo Division
ABA Summer ReportElder Law Committee Annual 2018 GP Solo Division![]()
COUNCIL AGENDA REPORT FORM
COMMITTEE REPORTS
Division Number and Name: Division 3: Practice Specialty
Division Director Name: Daniel Tann
Reporting Board or Committee: ABA Elder Law Committee
Completed By: Kenneth Vercammen Co-Chair, Edison, NJ
1. What has your board or committee done since its last report (e.g., conference call, meetings, use of discussion lists, planning for CLE programs, publications and articles, collaboration with other boards, committees, or sections)?
- Sent email to members with Committee Report and information on upcoming ABA Aging conference calls
- -Publicized program Protecting Your Assets Against Long-Term Care and Nursing Home Expenses April 26 2018 9:45 AM to 10:45 AM with speakers James and Matt Davidson Moderator Kenneth Vercammen, Esq. at the ABA-GPSoloand Group Legal Services Association (Formerly API) Spring Conference & Assisted GLSA Group Legal at New Orleans meeting April 2018 with other programs
- Added Spring Committee report to Estate Planning blog and forwarded to all committee members
-Published article in GP Solo
-
- -Helped publicize Solo Division’s book “Wills and Estate Administration Practice” approx 240 pages to help raise revenue for section- Sale of book continue to be good
What is the status of your board or committee’s business plan for the year (e.g., participation of board or committee members, goals achieved, and new goals)?
Participate in Quarterly ABA Law and Aging Networking Call
July 9, 2018
2:00 - 3:00 PM Eastern time
Call in number:
866-646-6488
Conference code: 864 935 2408
Our goal is to provide a forum for ABA Entities to talk about programs, publications, or policy in age related issues:
ABA Policy Proposals in development for ABA Annual Meeting
Upcoming training on age related topics or issues
Publications
Other planned programing on age related topics or issues
Offered to do program if there is a Solo day in Chicago 2018
-Ken V will participate in future quarterly ABA Commission on Law and Aging networking. These calls are open to ABA staff and Members with an interest in developing programing, policy or publications on issues relating to aging and law. Please share this message with colleagues who may want to participate and encourage people to email me to be added to the invitation list (david.godfrey@americanbar.org<mailto:david.godfrey@americanbar.org>.)
Help publicize ABA Estate Planning, Probate and Trust and Elder Law Joint Committee Meeting Friday, Estate Planning and Elder Law Joint Committee Meetings have been scheduled for Friday August 3, at 4:00 pm – 5:00 pm round table discussion. Free to attendees
at the ABA Annual Meeting Swissotel Chicago
Ideas to be discussed:
-BUILDING THE MILLION DOLLAR ESTATE PLANNING PRACTICE
A Lawyer’s Guide toCreating a Winning Estate Planning Practice
Ethically Building Your Practice using free and low-cost online methods
1. Website specific http://www.njwillsprobatelaw.com
2. Blog https://njprobate.blogspot.com
3. Facebook Law Office
4. LinkedIn- post articles, events
5. Google+ aka Google Plus
6. Twitter
7. YouTube
8. Avvo Legal rating
9. JD Supra
10. Justia Lawyer Directory:
11. Yelp for Business Owners
Attend October 2018 Charleston meeting and help out
-Future to do: Schedule Committee meeting at ABA Mid year 2019 in Las Vegas
- Future to do: Schedule Committee meeting at Spring 2019 meeting in New York
2. Does your board or committee need any assistance from the Director, Staff, Division Officers, or Council? If yes, please explain:
Yes we need help setting up future programs and meetings.
-The Committee anticipates guidance, support and/or involvement from our Division Director regarding publicizing the Wills and Estate Administration book
ACTION ITEMS
List any action items to be presented to Council. These are items that require discussion, reporting, and/or decision-making on the part of the Council (e.g. a request for support of matters appearing before the House of Delegates, revisions of Division policies, and requests for use of extraordinary Division resources).
INFORMATIONAL ITEMS
List any informational items to be represented to Council. These items are matters for the Council’s information and do not require action.
Wednesday, June 20, 2018
Wills & Power of Attorney Seminar
Wills & Power of Attorney Seminar
Piscataway Library Kennedy Branch
October 11 at 7pm
500 Hoes Lane Piscataway NJ 08854
Piscataway J.F. Kennedy Memorial Library
Open to the public. You do not need to be a resident.
SPEAKER: Kenneth Vercammen, Esq. Edison, (Author- ABA’s “Wills and Estate Administration book”)
The January 1, 2018 New Estate Tax law changes administration of estates and trusts in New Jersey.
Main Topics:
1. NJ Estate Tax eliminated as of January 1, 2018 & Veterans Tax credit
2. 2018 changes in Federal Estate and Gift Tax
3. The new Digital Fiduciary Act & New law permits Executor to resign if all parties consent
4. Power of Attorneys
5. Living Will
6. Administering the Estate/ Probate/Surrogate
COMPLIMENTARY MATERIAL: Brochures on Wills, Probate and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Piscataway Library Kennedy Branch
Brought to you by the Piscataway Public Library Foundation
Register at the Kennedy Library Information Desk or by calling 732-463-1633x6
FB
Can’t attend? We can email you materials Send email to VercammenLaw@Njlaws.com
Free Will Seminars and Speakers Bureau for Groups
SPEAKERS BUREAU
At the request of senior citizen groups, unions, and Middlesex County companies and organizations, the " Speakers Bureau " is a service designed to educate citizens about how laws affect their lives and how the judicial system operates. We have attorneys available to speak to businesspersons, educational, civic and social organizations on a wide range of topics during business hours. If your organization in Central NJ would like to schedule a Will & Estates seminar, call Kenneth Vercammen’s Law Office at 732-572-0500 or email Vercammenlaw@njlaws.com
10 years ago the AARP Network Attorneys of the Edison/Metuchen/Woodbridge area several years ago established a community Speakers Bureau to provide educational programs to AARP and senior clubs, Unions and Middlesex County companies. Now, Ken Vercammen, Esq. and volunteer attorneys of the Middlesex County Estate Planning Council have provided Legal Rights Seminars to hundreds of seniors, business owners and their employees, unions, clubs and non-profit groups
Details on free programs available
These quality daytime educational programs will educate and even entertain. Clubs and companies are invited to schedule a free seminar. The following Seminars are now available:
1. WILLS & ESTATE ADMINISTRATION-PROTECT YOUR FAMILY AND
MAKE PLANNING EASY
2. POWER OF ATTORNEY to permit family to pay your bills if you are temporarily disabled and permit doctors to talk with family
All instructors are licensed attorneys who have been in practice at least 25 years. All instructors are members of the American Bar Association, New Jersey
State Bar Association, and Middlesex County Bar Association. All programs include free written materials.
You don't have to be wealthy or near death to do some thinking about a Will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of state law.
Topics discussed include: Who needs a Will?; What if you die without a Will (intestacy)?; Mechanics of a Will; "Living Will"; Powers of Attorney; Selecting an executor, trustee, and guardian; Proper Will execution; Inheritance Taxes, Estate Taxes $14,000 annual gift tax exclusion, Bequests to charity, Why you need a "Self-Proving" Will and Estate Administration/ Probate.
Sample materials: Hand-outs on Wills, Living Wills/Medical Advance Directive, Power of Attorney, Probate and Administration of an Estate, Real Estate, Working with your Attorney, Consumers Guide to New Jersey Laws, and Senior Citizen Rights.
SPEAKERS BUREAU
At the request of senior citizen groups, unions, and Middlesex County companies and organizations, the " Speakers Bureau " is a service designed to educate citizens about how laws affect their lives and how the judicial system operates. We have attorneys available to speak to businesspersons, educational, civic and social organizations on a wide range of topics during business hours.
In today's complex world, few people can function successfully and safely without competent legal advice. In order to insure your estate plans are legally set up, you need to know exactly where you stand so that you can avoid possibly catastrophic mistakes impacting both you and your family.
About the speaker: Kenneth A. Vercammen is a trial attorney in Edison, NJ. We is the author of the American Bar Association’s book “Wills and Estate Administration”
He is co-chair of the ABA Probate & Estate Planning Law Committee of the American Bar Association Solo Small Firm Division. He is a speaker for the NJ State Bar Association at the annual Nuts & Bolts of Elder Law & Estate Administration program.
He was Editor of the ABA Estate Planning Probate Committee Newsletter. Mr. Vercammen has published over 150 legal articles in national and New Jersey publications on litigation, elder law, probate and trial topics. He is a highly regarded lecturer on litigation and probate law for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He established the NJlaws website www.njlaws.com which includes many articles on Estate Planning, Probate and Wills. He is a member of the AARP and often lectures to groups on the importance of an up to date Will, Power of Attorney and Living Will.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
www.njlaws.com
Piscataway Library Kennedy Branch
October 11 at 7pm
500 Hoes Lane Piscataway NJ 08854
Piscataway J.F. Kennedy Memorial Library
Open to the public. You do not need to be a resident.
SPEAKER: Kenneth Vercammen, Esq. Edison, (Author- ABA’s “Wills and Estate Administration book”)
The January 1, 2018 New Estate Tax law changes administration of estates and trusts in New Jersey.
Main Topics:
1. NJ Estate Tax eliminated as of January 1, 2018 & Veterans Tax credit
2. 2018 changes in Federal Estate and Gift Tax
3. The new Digital Fiduciary Act & New law permits Executor to resign if all parties consent
4. Power of Attorneys
5. Living Will
6. Administering the Estate/ Probate/Surrogate
COMPLIMENTARY MATERIAL: Brochures on Wills, Probate and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Piscataway Library Kennedy Branch
Brought to you by the Piscataway Public Library Foundation
Register at the Kennedy Library Information Desk or by calling 732-463-1633x6
FB
Can’t attend? We can email you materials Send email to VercammenLaw@Njlaws.com
Free Will Seminars and Speakers Bureau for Groups
SPEAKERS BUREAU
At the request of senior citizen groups, unions, and Middlesex County companies and organizations, the " Speakers Bureau " is a service designed to educate citizens about how laws affect their lives and how the judicial system operates. We have attorneys available to speak to businesspersons, educational, civic and social organizations on a wide range of topics during business hours. If your organization in Central NJ would like to schedule a Will & Estates seminar, call Kenneth Vercammen’s Law Office at 732-572-0500 or email Vercammenlaw@njlaws.com
10 years ago the AARP Network Attorneys of the Edison/Metuchen/Woodbridge area several years ago established a community Speakers Bureau to provide educational programs to AARP and senior clubs, Unions and Middlesex County companies. Now, Ken Vercammen, Esq. and volunteer attorneys of the Middlesex County Estate Planning Council have provided Legal Rights Seminars to hundreds of seniors, business owners and their employees, unions, clubs and non-profit groups
Details on free programs available
These quality daytime educational programs will educate and even entertain. Clubs and companies are invited to schedule a free seminar. The following Seminars are now available:
1. WILLS & ESTATE ADMINISTRATION-PROTECT YOUR FAMILY AND
MAKE PLANNING EASY
2. POWER OF ATTORNEY to permit family to pay your bills if you are temporarily disabled and permit doctors to talk with family
All instructors are licensed attorneys who have been in practice at least 25 years. All instructors are members of the American Bar Association, New Jersey
State Bar Association, and Middlesex County Bar Association. All programs include free written materials.
You don't have to be wealthy or near death to do some thinking about a Will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of state law.
Topics discussed include: Who needs a Will?; What if you die without a Will (intestacy)?; Mechanics of a Will; "Living Will"; Powers of Attorney; Selecting an executor, trustee, and guardian; Proper Will execution; Inheritance Taxes, Estate Taxes $14,000 annual gift tax exclusion, Bequests to charity, Why you need a "Self-Proving" Will and Estate Administration/ Probate.
Sample materials: Hand-outs on Wills, Living Wills/Medical Advance Directive, Power of Attorney, Probate and Administration of an Estate, Real Estate, Working with your Attorney, Consumers Guide to New Jersey Laws, and Senior Citizen Rights.
SPEAKERS BUREAU
At the request of senior citizen groups, unions, and Middlesex County companies and organizations, the " Speakers Bureau " is a service designed to educate citizens about how laws affect their lives and how the judicial system operates. We have attorneys available to speak to businesspersons, educational, civic and social organizations on a wide range of topics during business hours.
In today's complex world, few people can function successfully and safely without competent legal advice. In order to insure your estate plans are legally set up, you need to know exactly where you stand so that you can avoid possibly catastrophic mistakes impacting both you and your family.
About the speaker: Kenneth A. Vercammen is a trial attorney in Edison, NJ. We is the author of the American Bar Association’s book “Wills and Estate Administration”
He is co-chair of the ABA Probate & Estate Planning Law Committee of the American Bar Association Solo Small Firm Division. He is a speaker for the NJ State Bar Association at the annual Nuts & Bolts of Elder Law & Estate Administration program.
He was Editor of the ABA Estate Planning Probate Committee Newsletter. Mr. Vercammen has published over 150 legal articles in national and New Jersey publications on litigation, elder law, probate and trial topics. He is a highly regarded lecturer on litigation and probate law for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He established the NJlaws website www.njlaws.com which includes many articles on Estate Planning, Probate and Wills. He is a member of the AARP and often lectures to groups on the importance of an up to date Will, Power of Attorney and Living Will.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
www.njlaws.com
Tuesday, June 12, 2018
Happy Hour & Networking Social
Happy Hour & Networking Social
July 13, 2018
Professionals, Attorneys, Friends, Runners, Law Enforcement invited to Happy Hour & Networking Social
July 13, 2018 Friday
at Bar Anticipation
703 16th Ave. Lake Como/ Belmar, NJ 07719
Free !
5:30-7:55PM Hot & Cold Buffet
The reduced price Happy Hour is 6-7PM is $2.00 House Drinks, House Wine Bud/BudLt draft
Co-sponsored by NJ State Bar Association Municipal Court Section & several other organizations
Outdoor bands, prize giveaways. Bring your friends. Pass this along. Please bring a canned food donation for a community food bank, continuing to provide food and help to individuals in need.
Email Ken Vercammen's Law Office so we can put your name on the VIP list for wristbands. VercammenLaw@Njlaws.com
https://www.facebook.com/events/433925550366495/
If your group, non-profit or organization wishes to co-sponsor the networking happy hour, please contact
KENNETH VERCAMMEN, Esq.
2053 Woodbridge Ave. Edison, NJ 08817
732-572-0500 VercammenLaw@Njlaws.com
Bar Anticipation is 5 blocks from the Belmar Train Station and 8 blocks from the Ocean boardwalk
2018 Happy Hour Co-Sponsors as of 5/11/18
NJ State Bar Association Municipal Court Section
Young Lawyers Division YLD
Criminal Law Section
Business Law Section
Construction Law Section
Elder and Disability Law Section
Minorities in Legal Profession Section (MIPS)
Entertainment, Arts and Sports Law Section
Federal Practice and Procedure Section
Insurance Defense Special Committee
Insurance Law Section
Labor and Employment Law Section
Lawyers In Transition Special Committee
Local Government Law Section
NJSBA Dispute Resolution Section
Paralegal Special Committee
Consumer Protection Committee
Diversity Committee
Morris County Bar
NJ Defense Association
Paralegal Association of NJ
Lakewood Chamber of Commerce
Central Jersey Professionals Networking Group
ABA Estate, Probate & Trust Committee
ABA Elder Law Committee
ABA Criminal Law Committee
Retired Police & Fire Middlesex Monmouth Local 9
Middlesex Estate Planning Council
Edison Elks BPOE
July 13, 2018
Professionals, Attorneys, Friends, Runners, Law Enforcement invited to Happy Hour & Networking Social
July 13, 2018 Friday
at Bar Anticipation
703 16th Ave. Lake Como/ Belmar, NJ 07719
Free !
5:30-7:55PM Hot & Cold Buffet
The reduced price Happy Hour is 6-7PM is $2.00 House Drinks, House Wine Bud/BudLt draft
Co-sponsored by NJ State Bar Association Municipal Court Section & several other organizations
Outdoor bands, prize giveaways. Bring your friends. Pass this along. Please bring a canned food donation for a community food bank, continuing to provide food and help to individuals in need.
Email Ken Vercammen's Law Office so we can put your name on the VIP list for wristbands. VercammenLaw@Njlaws.com
https://www.facebook.com/events/433925550366495/
If your group, non-profit or organization wishes to co-sponsor the networking happy hour, please contact
KENNETH VERCAMMEN, Esq.
2053 Woodbridge Ave. Edison, NJ 08817
732-572-0500 VercammenLaw@Njlaws.com
Bar Anticipation is 5 blocks from the Belmar Train Station and 8 blocks from the Ocean boardwalk
2018 Happy Hour Co-Sponsors as of 5/11/18
NJ State Bar Association Municipal Court Section
Young Lawyers Division YLD
Criminal Law Section
Business Law Section
Construction Law Section
Elder and Disability Law Section
Minorities in Legal Profession Section (MIPS)
Entertainment, Arts and Sports Law Section
Federal Practice and Procedure Section
Insurance Defense Special Committee
Insurance Law Section
Labor and Employment Law Section
Lawyers In Transition Special Committee
Local Government Law Section
NJSBA Dispute Resolution Section
Paralegal Special Committee
Consumer Protection Committee
Diversity Committee
Morris County Bar
NJ Defense Association
Paralegal Association of NJ
Lakewood Chamber of Commerce
Central Jersey Professionals Networking Group
ABA Estate, Probate & Trust Committee
ABA Elder Law Committee
ABA Criminal Law Committee
Retired Police & Fire Middlesex Monmouth Local 9
Middlesex Estate Planning Council
Edison Elks BPOE
Friday, April 20, 2018
Wills, Estate Planning & Probate Seminar Sayreville Senior Center May 1
Wills, Estate Planning & Probate Seminar
423 Main Street
Sayreville NJ 08872
open to the public
Open to the public. You do not need to be a resident.
SPEAKER: Kenneth Vercammen, Esq. Edison, (Author- ABA’s “Wills and Estate Administration book”)
Main Topics:
1. NJ Estate Tax eliminated on Estates as of January 1, 2018 & Veterans Tax credit
2. 2018 changes in Federal Estate and Gift Tax
3. The new Digital Fiduciary Act & New law permits Executor to resign if all parties consent
4. Power of Attorneys
5. Living Will
6. Administering the Estate/ Probate/Surrogate
COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
For information Call Sayreville Senior Center 732-390-7059Jen Krushinski
jkrushinski@sayreville.com
You don’t have to be a Sayreville resident to attend. https://www.facebook.com/events/1812208865746499/
Speaker: Kenneth A. Vercammen is a trial attorney in Edison, NJ. He is Author of the American Bar Association book “Wills and Estate Administration”. He is co-chair of the ABA Probate & Estate Planning Law Committee of the American Bar Association Solo Small Firm Division. He is a speaker for the NJ State Bar Association at the annual Nuts & Bolts of Elder Law & Estate Administration program.
He was Editor of the ABA Estate Planning Probate Committee Newsletter. Mr. Vercammen has published over 150 legal articles in national and New Jersey publications on litigation, elder law, probate and trial topics. He is a highly regarded lecturer on litigation and probate law for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He established the NJlaws website www.njlaws.comwhich includes many articles on Estate Planning, Probate and Wills. He is a member of the AARP and often lectures to groups on the importance of an up to date Will, Power of Attorney and Living Will.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
www.njlaws.com
www.CentralJerseyElderLaw.com
Wednesday, April 04, 2018
nursing home medicaid payment denied where applicant did not provide documents W.S., Petitioner-Appellant, v. DIVISION OF MEDICAL ASSISTANCE
W.S.,
Petitioner-Appellant,
v.
DIVISION OF MEDICAL ASSISTANCE
AND HEALTH SERVICES and
ATLANTIC COUNTY BOARD OF
SOCIAL SERVICES,
Respondents-Respondents.
_______________________________
Submitted February 28, 2018 – Decided March 20, 2018
Before Judges Manahan and Suter.
On appeal from the Department of Human
Services, Division of Medical Assistance and
Health Services.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2815-16T4
PER CURIAM
W.S. appeals from the January 17, 2017 final decision of the
New Jersey Department of Human Services, Division of Medical
Assistance and Health Services (DMAHS). A fair hearing was held
before the Administrative Law Judge (ALJ), who, in his initial
decision, reversed the Atlantic County Board of Social Services'
(ACBSS) denial of W.S.'s Medicaid application. ACBSS filed
exceptions to the ALJ's decision. The Director of the DMAHS,
reversed the ALJ's decision and entered a final agency decision
upholding the denial of W.S.'s Medicaid application. In essence,
the Director held that despite given the opportunity to provide
financial documents necessary for a determination of eligibility
for Medicaid benefits, the documents were not provided.
W.S. argues that ACBSS should have allowed more time to
provide the information and should have provided assistance in
obtaining the information. We conclude that controlling law
compels us to affirm.
We review an agency's decision for the limited purpose of
determining whether its action was arbitrary, capricious or
unreasonable. "An administrative agency's decision will be upheld
'unless there is a clear showing that it is arbitrary, capricious,
or unreasonable, or that it lacks fair support in the record.'"
R.S. v. Div. of Med. Assistance and Health Servs.,
434 N.J. Super.
250, 261 (App. Div. 2014) (quoting Russo v. Bd. of Trs., Police &
2 A-2815-16T4
Firemen's Ret. Sys.,
206 N.J. 14, 27 (2011)). "The burden of
demonstrating the agency's action was arbitrary, capricious or
unreasonable rests upon the [party] challenging the administrative
action." E.S. v. Div. of Med. Assistance & Health Servs.,
412 N.J. Super. 340, 349 (App. Div. 2010) (alteration in original)
(quoting In re Arenas,
385 N.J. Super. 440, 443-44 (App. Div.
2006)).
"Medicaid is a federally-created, state-implemented program
that provides 'medical assistance to the poor at the expense of
the public.'" Matter of Estate of Brown,
448 N.J. Super. 252,
256, (App. Div.) (quoting Estate of DeMartino v. Div. of Med.
Assistance & Health Servs.,
373 N.J. Super. 210, 217 (App. Div.
2004)), certif. denied, In re Estate of Brown,
230 N.J. 393 (2017);
see also 42 U.S.C. § 1396-1. To receive federal funding, the
State must comply with all federal statutes and regulations.
Harris v. McRae,
448 U.S. 297, 301 (1980).
In New Jersey, the Medicaid program is administered by DMAHS
pursuant to the New Jersey Medical Assistance and Health Services
Act,
N.J.S.A. 30:4D-1 to -19.5. The county welfare boards, such
as ACBSS, evaluate eligibility.
One of the objectives of Medicaid is to provide "medical
assistance to needy persons who are institutionalized in nursing
homes as a result of illness or other incapacity." R.S., 434 N.J.
3 A-2815-16T
4 Super. at 258 (quoting M.E.F. v. A.B.F.,
393 N.J. Super. 543, 545
(App. Div. 2007)). "DMAHS provides institutional level Medicaid
benefits to individuals residing in nursing homes pursuant to the
Medicaid Only program, N.J.A.C. 10:71-1.1 to -9.5." Brown,
448 N.J. Super. at 257. "[A]n applicant seeking such benefits must
have financial eligibility as determined by the regulations and
procedures." Ibid.; see also N.J.A.C. 10:71-1.2(a). "[T]o be
financially eligible, the applicant must meet both income and
resource standards." Ibid.; N.J.A.C. 10:71-3.15.
Through its regulations, DMAHS establishes "policy and
procedures for the application process." N.J.A.C. 10:71-2.2(b).
The county welfare boards exercise "direct responsibility in the
application process to . . . [r]eceive applications." N.J.A.C.
10:71-2.2(c)(2). The regulations establish timeframes to process
an application, with the "date of effective disposition" being the
"effective date of the application" where the application has been
approved. N.J.A.C. 10:71-2.3(b)(1).
"The process of establishing eligibility involves a review
of the application for completeness, consistency, and
reasonableness." N.J.A.C. 10:71-2.9. "The maximum period of time
normally essential to process an application for the aged is
[forty-five] days." N.J.A.C. 10:71-2.3(a). New Jersey
regulations recognize:
4 A-2815-16T4
there will be exceptional cases where the
proper processing of an application cannot be
completed within the [45-day] period. Where
substantially reliable evidence of
eligibility is still lacking at the end of the
designated period, the application may be
continued in pending status. In each such
case, the CWA [(county welfare agency)] shall
be prepared to demonstrate that the delay
resulted from one of the following:
. . . .
(2) A determination to afford the applicant,
whose proof of eligibility has been
inconclusive, a further opportunity to develop
additional evidence of eligibility before
final action on his or her application;
[N.J.A.C. 10:71-2.3(c).]
This was the fourth application by W.S. for Medicaid. The
applications were filed by Hammonton Center as his "Authorized
Representative" (AR) of W.S. Prior applications were submitted
in February, May and November, 2015. The instant application was
received on February 1, 2016 and was denied for failure to provide
information needed to make a determination on June 21, 2016. At
the time of the denial, bank statements from an ING Direct account
remained outstanding. Statements from this account were requested
by ACBSS commencing with the first application.
On April 27, 2016, an ACBSS caseworker acknowledged receipt
of a fax from the AR's attorney, which informed the ACBSS that it
had not obtained the requested documents. The caseworker advised
5 A-2815-16T4
the AR that the documentation was necessary to make an eligibility
determination and suggested searching for the documents with the
financial institution by using the wife's account number.
On June 2, 2016, the caseworker sent the AR a letter stating
that the application would be denied on June 20, 2016, if the
account statements were not provided by that date. On June 20,
2016, the attorney for the AR sent an email to the caseworker
requesting an extension because they still had not obtained the
records. The request was denied and the application was denied
on June 21, 2016.
ACBSS had the discretion, pursuant to N.J.A.C. 10:71-2.3(c),
to extend the deadline even further and could have placed W.S.'s
application in pending status. ACBSS, however, did not use the
forty-five day standard set out in N.J.A.C. 10:71-2.3(a) as a
basis for denying eligibility. See 42 C.F.R. § 435.912(g)(2)
(2013). Instead, ACBSS gave the AR one-hundred-eighty days to
procure the requested verification documents. ACBSS has the
obligation to address Medicaid applications timely. See N.J.A.C.
10:71-2.2(c)(5).
During a Medicaid application process, the CWA, ACBSS here,
is responsible for assisting an applicant "in exploring their
eligibility for assistance," N.J.A.C. 10:71-2.2(c)(3), and making
known to the applicant "the appropriate resources and services
6 A-2815-16T4
both within the agency and the community, and, if necessary, assist
in their use." N.J.A.C. 10:71-2.2(c)(4). The applicant must
"[c]omplete, with assistance from the CWA if needed, any forms
required by the CWA as a part of the application process," N.J.A.C.
10:71-2.2(e)(1), and "[a]ssist the CWA in securing evidence that
corroborates his or her statements." N.J.A.C. 10:71-2.2(e)(2).
The applicant is "the primary source of information," but the CWA
is responsible for making "the determination of eligibility and
to use secondary sources when necessary, with the applicant's
knowledge and consent." N.J.A.C. 10:71-1.6(a)(2).
"The CWA shall verify the equity value of resources1 through
appropriate and credible sources. . . . If the applicant's
resource statements are questionable, or there is reason to believe
the identification of resources is incomplete, the CWA shall verify
the applicant's resource statements through one or more third
parties." N.J.A.C. 10:71-4.1(d)(3). The applicant is responsible
for cooperating fully with the verification process if the CWA has
to contact the third party in reference to verifying resources.
N.J.A.C. 10:71-4.1(d)(3)(i). "If necessary, the applicant shall
1
A resource is "any real or personal property which is owned by
the applicant . . . and which could be converted to cash to be
used for his or her support and maintenance." N.J.A.C. 10:71-
4.1(b).
7 A-2815-16T4
provide written authorization allowing the CWA to secure the
appropriate information." Ibid.
N.J.A.C. 10:71-2.10 discusses collateral investigation:
(a) "Collateral investigation" shall refer
to contacts with individuals other than
members of applicant's immediate household,
made with the knowledge and consent of the
applicant(s).
(b) The primary purpose of collateral
contacts is to verify, supplement or clarify
essential information.
Here, ACBSS did not attempt to procure the missing
documentation. However, nothing in N.J.A.C. 10:71-4.1(d)(3)
places a burden on ACBSS to acquire the required documents, but
rather states only that if an applicant's identification of
resources is incomplete, ACBSS must verify the resource statements
through a third party. Although ACBSS is responsible for assisting
an applicant, the regulations did not create an affirmative duty
upon ACBSS to procure all documents necessary to complete the
application, especially when W.S. had a representative.
"An administrative agency's interpretation of statutes and
regulations within its implementing and enforcing responsibility
is ordinarily entitled to our deference." N.J. Div. of Child
Prot. & Permanency v. V.E.,
448 N.J. Super. 374, 390 (App. Div.
2017) (quoting Wnuck v. N.J. Div. of Motor Vehicles,
337 N.J.
Super. 52, 56 (App. Div. 2001)). "Deference to an agency decision
8 A-2815-16T4
is particularly appropriate where interpretation of the Agency's
own regulation is in issue." R.S.,
434 N.J. Super. at 261 (quoting
I.L. v. N.J. Dep't of Human Servs., Div. of Med. Assistance &
Health Servs.,
389 N.J. Super. 354, 364 (App. Div. 2006)).
Here, the DMAHS rendered its final decision after
interpreting its own regulations. We may reverse only upon a
showing that the DMAHS acted arbitrarily, capriciously, or
unreasonably. Denying an application that did not have the
information necessary to verify eligibility after giving several
adjournments is not arbitrary, capricious or unreasonable because
Medicaid applications must be processed promptly and Medicaid is
intended to be a resource of last resort, reserved for those who
have a proven financial or medical need for assistance. See N.E.
v. N.J. Div. of Med. Assistance & Health Servs.,
399 N.J. Super.
566, 572 (App. Div. 2008).
Affirmed.
Saturday, March 31, 2018
Pending Bill” “Aid in Dying for the Terminally Ill Act,”
Pending Bill” “Aid in Dying for the Terminally Ill Act,”
The Assembly Judiciary
Committee reports favorably and with committee amendments Assembly Bill No.
1504.
As amended by the committee, this
bill establishes the “Aid in Dying for the Terminally Ill Act,” which will
allow an adult New Jersey resident, who has the capacity to make health care
decisions and who has been determined by that individual’s attending and
consulting physicians to be terminally ill, to obtain medication that the
patient may self-administer to terminate the patient’s life. Under the
bill, “terminally ill” is defined to mean the patient is in the terminal stage
of an irreversibly fatal illness, disease, or condition with a prognosis, based
upon reasonable medical certainty, of a life expectancy of six months or less.
In order for a terminally ill
patient to receive a prescription for medication under the bill, the patient is
required to make two oral requests and one written request to the patient’s
attending physician for the medication. The bill requires at least 15 days
to elapse between the initial oral request and the second oral request, and
between the patient’s initial oral request and the writing of a prescription
for the medication. The patient may submit the written request for
medication either when the patient makes the initial oral request, or at any
time thereafter, but a minimum of 48 hours are to elapse between the attending
physician’s receipt of the written request and the writing of a prescription
for medication.
When a patient makes an initial
oral request for medication under the bill’s provisions, the attending
physician is required to provide the patient with information about the risks,
probable results, and alternatives to taking the medication; recommend that the
patient participate in a consultation concerning concurrent or additional
treatment opportunities, palliative care, comfort care, hospice care, and pain
control options; and refer the patient to a health care professional who is
qualified to discuss those alternative care and treatment options. The patient
may choose, but is not required, to participate in such consultation. The
attending physician is also required to recommend that the patient notify the
patient’s next of kin of the request, but medication may not be denied if a patient
declines, or is unable to, provide this notification.
The attending physician is required
to refer the patient to a consulting physician for the purpose of obtaining
confirmation of the attending physician’s diagnosis. Both the attending
physician and the consulting physician are required to verify that the patient
has made an informed decision when requesting medication under the bill.
When the patient makes the second oral request, the attending physician is to
offer the patient an opportunity to rescind the request. In addition, the
attending physician is required to notify the patient that a request may be
rescinded at any time and in any manner, regardless of the patient’s mental
state.
A patient may make a written
request for medication, in accordance with the bill’s provisions, so long as
the patient: is an adult resident of New Jersey, as demonstrated through
documentation submitted to the attending physician; is capable; is terminally
ill, as determined by the attending physician and confirmed by the consulting
physician; and has voluntarily expressed a wish to receive a prescription for
the medication.
The bill requires a valid written
request for medication to be in a form that is substantially similar to the
form set forth in the bill. The bill requires the written request to be
signed and dated by the patient and witnessed by at least two individuals who
attest, in the patient’s presence, that, to the best of their knowledge and
belief, the patient is capable and is acting voluntarily.
The bill requires at least one of
the witnesses to be a person who is not:
(1) a relative of the
qualified patient by blood, marriage, or adoption;
(2) at the time the request
is signed, entitled to any portion of the patient’s estate upon the patient’s
death;
(3) an owner, operator, or
employee of a health care facility, other than a long term care facility, where
the patient is receiving medical treatment or is a resident.
The patient's attending physician
may not serve as a witness.
A written request form will be
required to include an indication as to whether the patient has informed the
patient’s next-of-kin about the request for medication and an indication as to
whether concurrent or additional treatment consultations have been recommended
by the attending physician or undertaken by the patient.
If the patient complies with the
bill’s oral and written request requirements, establishes State residency, and
is found by both the attending physician and a consulting physician to be
capable, to have a terminal illness, and to be acting voluntarily, the patient
will be considered to be a “qualified terminally ill patient” who is eligible
to receive a prescription for medication. The bill expressly provides
that a person is not be considered to be a “qualified terminally ill patient”
solely on the basis of the person’s age or disability or the diagnosis of a
specific illness, disease, or condition.
If either the attending physician
or the consulting physician believes that the patient may lack capacity to make
health care decisions, the physician will be required to refer the patient to a
mental health care professional, which is defined in the amended bill to mean a
licensed psychiatrist, psychologist, or clinical social worker, for a
consultation to determine whether the patient is capable. If such a
referral is made, the attending physician is prohibited from issuing a
prescription to the patient for medication under the bill unless the attending
physician has received written notice, from the mental health care
professional, affirming that the patient is capable.
Prior to issuing a prescription for
requested medication, the attending physician is required to ensure that all
appropriate steps have been carried out, and requisite documentation submitted,
in accordance with the bill’s provisions. The patient's medical record is
to include documentation of: the patient’s oral and written requests and
the attending physician’s offer to rescind the request; the attending
physician’s recommendation for concurrent or alternative care and treatment
consultations, and whether the patient participated in a consultation; the
attending physician’s and consulting physician’s medical diagnosis and
prognosis, and their determinations that the patient is terminally ill, is
capable of making the request, is acting voluntarily, and is making an informed
decision; the results of any counseling sessions with a mental health care
professional ordered for the patient; and a statement that all the requirements
under the bill have been satisfied.
A patient's request for, or the
provision of, medication in compliance with the bill will not constitute abuse
or neglect of an elderly person, and may not be used as the sole basis for the
appointment of a guardian or conservator. The bill specifies that a patient’s
guardian, conservator, or representative is not authorized to take any action
on behalf of the patient in association with the making or rescinding of
requests for medication under the bill’s provisions, except to communicate the
patient’s own health care decisions to a health care provider upon the
patient’s request. The bill prohibits any contract, will, insurance
policy, annuity, or other agreement from including a provision that conditions
or restricts a person’s ability to make or rescind a request for medication
pursuant to the bill, and further specifies that the procurement or issuance
of, or premiums or rates charged for, life, health, or accident insurance
policies or annuities may not be conditioned upon the making or rescinding of a
request for medication under the bill’s provisions. An obligation owing
under a contract, will, insurance policy, annuity, or other agreement executed
before the bill’s effective date will not be affected by a patient’s request,
or rescission of a request, for medication under the bill.
Any person who, without the
patient’s authorization, willfully alters or forges a request for medication
pursuant to the bill, or conceals or destroys a rescission of that request,
with the intent or effect of causing the patient's death, will be guilty of a
crime of the second degree, which is punishable by imprisonment for a term of
five to 10 years, a fine of up to $150,000, or both. A person who coerces
or exerts undue influence on a patient to request medication under the bill, or
to destroy a rescission of a request, will be guilty of a crime of the third
degree, which is punishable by imprisonment for a term of three to five years,
a fine of up to $15,000, or both. The bill does not impose any limit on
liability for civil damages in association with the negligence or intentional
misconduct of any person.
The amended bill provides immunity
from civil and criminal liability, from professional disciplinary action, and
from censure, discipline, suspension, or loss of any licensure, certification,
privileges, or membership for any action that is undertaken in compliance with
the bill, including the act of being present when a qualified terminally ill
patient takes the medication prescribed to the patient under the bill’s
provisions. As amended, the bill provides that this immunity also applies
to any refusal to take actions in furtherance of, or to otherwise participate
in, a request for medication made under the bill. Any action undertaken
in accordance with the bill will not be deemed to constitute patient abuse or
neglect, suicide, assisted suicide, mercy killing, euthanasia, or homicide
under any State law, and the bill expressly exempts actions taken pursuant to
the bill from the provisions of N.J.S.2C:11-6, which makes it a crime to
purposely aid a person in committing suicide. These immunities will not
apply to acts or omissions constituting gross negligence, recklessness, or
willful misconduct. Nothing in the bill is to be construed to authorize a
physician or other person to end a patient's life by lethal injection, active
euthanasia, or mercy killing.
The bill amends section 1 of
P.L.1991, c.270 (C.2A:62A-16), which establishes a “duty to warn” when a health
care professional believes that a patient intends to carry out physical
violence against the patient’s own self or against another person, in order to
specify that that “duty to warn” provisions are not applicable when a qualified
terminally ill patient requests medication under the bill.
The bill requires a patient’s
attending physician to notify the patient of the importance of taking the
prescribed medication in the presence of another person and in a non-public
place. The bill specifies that, if any governmental entity incurs costs as
a result of a patient’s self-administration of medication in a public place,
the governmental entity will have a claim against the patient’s estate to
recover those costs, along with reasonable attorney fees.
The bill authorizes attending
physicians, if registered with the federal Drug Enforcement Administration, to
dispense requested medication, including ancillary medication designed to
minimize discomfort, directly to the patient. Otherwise, the attending
physician may transmit the prescription to a pharmacist, who will dispense the
medication directly to the patient, to the attending physician, or to an
expressly identified agent of the patient. Medication prescribed under
the bill may not be dispensed by mail or other form of courier. Not
later than 30 days after the dispensation of medication under the bill, the
health care professional who dispensed the medication will be required to file
a copy of the dispensing record with the Division of Consumer Affairs
(Division) in the Department of Law and Public Safety.
Any medication prescribed under the
bill, which the patient chooses not to self-administer, is required to be
disposed of by lawful means. Lawful means includes, but is not limited
to, disposing of the medication consistent with State and federal guidelines
concerning disposal of prescription medications or surrendering the medication
to a prescription medication drop-off receptacle. No later than 30 days
after the patient’s death, the attending physician will be required to transmit
documentation of the patient’s death to the Division. The Division is
required, to the extent practicable, to coordinate the reporting of dispensing
records and records of patient death with the process used for the reporting of
prescription monitoring information. The Division will be required to
annually prepare and make available on its Internet website a statistical
report of information collected pursuant to the bill’s provisions; information
made available to the public will not include personal or identifying
information.
A health care facility’s existing
policies and procedures will be required, to the maximum extent possible, to
govern actions taken by health care providers pursuant to the bill. Any
action taken by a health care professional or facility to carry out the
provisions of the bill is to be voluntary. If a health care professional
is unable or unwilling to participate in a request for medication under the
bill, the professional will be required to refer the patient to another health
care provider and provide the patient’s medical records to that provider.
This bill was pre-filed for
introduction in the 2018-2019 session pending technical review. As
reported, the bill includes the changes required by technical review, which has
been performed.
COMMITTEE AMENDMENTS:
The committee amendments clarify
that patients are to be advised of both concurrent and additional treatment
opportunities, as well as palliative care, comfort care, hospice care, and pain
control, when making a request for aid in dying medication under the bill.
The committee amendments provide
that licensed clinical social workers will be permitted to make a determination
as to whether a patient has the capacity to make health care decisions; as introduced,
the bill provided that only licensed psychiatrists and psychologists could make
this determination. The committee amendments additionally add a new
definition of “mental health care professional,” which includes licensed
psychiatrists, psychologists, and clinical social workers, and add a provision
requiring the State Board of Social Work Examiners to adopt rules and
regulations to implement the provisions of the bill. The committee
amendments remove references concerning the referral of a patient to a mental
health care professional if the attending or consulting physician thinks the
patient may have a psychiatric or psychological disorder or depression that
causes impaired judgment; as amended, the bill provides for such referrals when
the attending or consulting physician thinks the patient may lack the capacity
to make health care decisions. The bill removes a definition of
“counseling,” and various references to the term, that are obviated by these
amendments.
The committee amendments revise the
definition of “self-administer” to clarify that the term will not be limited to
ingesting the aid in dying medication, but will instead apply to the physical
administration of the medication to the patient’s own self.
The committee amendments remove a
provision that would have required that, if the patient is a resident in a long
term care facility, a designated staff member of the facility is required to be
one of the witnesses to the patient’s written request. The committee
amendments further provide an exception to the prohibition against an owner,
operator, or employee of a health care facility from being a witness to the
patient’s written request, to provide that this prohibition will not apply when
the patient is a resident of a long term care facility. The bill defines
“long term care facility” to mean a licensed nursing home, assisted living
residence, comprehensive personal care home, residential health care facility,
or dementia care home.
The committee amendments remove certain
language concerning when a patient has provided written consent for the
patient’s attending physician to contact a pharmacist regarding a prescription
for aid in dying medication; the bill expressly provides elsewhere that the
patient may provide such written consent when completing the written consent
form, making the additional reference to the consent redundant.
The committee amendments clarify
that the means of lawfully disposing of unused aid in dying medication may
include disposal consistent with State and federal guidelines concerning the
disposal of prescription medications or surrender to a prescription medication
drop-off receptacle.
The committee amendments provide
that, in addition to immunity from civil and criminal liability and
professional disciplinary action, a person may not be subject to censure,
discipline, suspension, or loss of any licensure, certification, privileges, or
membership for any action taken in compliance with the bill. The
committee amendments further provide that these protections also apply to the
refusal to take any action in furtherance of, or to otherwise participate in, a
request for medication under the bill.
The committee amendments clarify
that, in addition to not constituting patient abuse or neglect, suicide,
assisted suicide, mercy killing, or homicide, actions taken in connection with
a request for medication under the bill will not constitute euthanasia.
The committee amendments provide
that, in addition to not providing the sole basis for the appointment of a
guardian or conservator, a patient’s request for, or the provision of,
medication under the bill will not constitute abuse or neglect of an elderly
person.
The committee amendments provide
that the immunities and protections established under the bill do not apply to
acts or omissions that constitute gross negligence, recklessness, or willful
misconduct.
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