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The Need for Legal and Regulatory Framework for Telemedicine in in Kenya

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By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya)*

Telemedicine has been called the big idea for creating access to healthcare in Kenya. This owes to the fact that almost 70% of the population in Kenya live in rural areas and there are hardly any clinics within walking distance for rural fork. And even where such clinics are available, they are usually staffed with nurses or community health workers who offer very basic services as the doctor to patient level remains low. The question of how to increase access to doctors and maximize the use of time for medical personal is not only a big deal for management of modern hospitals in the city but it is also becoming a matter of urgency for health services providers in remote areas.  In fact, the rise of telemedicine will likely lower the need for medical tourism beyond the borders.

As matters stand, telemedicine has been taking root in Kenya, especially with the outbreak of the COVI-19 pandemic. The World Health Organization observes that Information and Communication Technologies (ICTs) have great potential to address some of the challenges faced by both developed and developing countries in providing accessible, cost-effective, high-quality health care services through the use of telemedicine. Telemedicine uses ICTs to overcome geographical barriers, and increase access to health care services. This is particularly beneficial for rural and underserved communities in developing countries – groups that traditionally suffer from lack of access to health care.

The World Health Organization uses the following broad description of the term ‘telemedicine’: “The delivery of health care services, where distance is a critical factor, by all health care professionals using information and communication technologies for the exchange of valid information for diagnosis, treatment and prevention of disease and injuries, research and evaluation, and for the continuing education of health care providers, all in the interests of advancing the health of individuals and their communities”. Notably, telemedicine is an open and constantly evolving science, as it incorporates new advancements in technology and responds and adapts to the changing health needs and contexts of societies. Telemedicine episodes may be classified on the basis of: (1) the interaction between the client and the expert (i.e. real-time or prerecorded), and (2) the type of information being transmitted (for example, text, audio, video).

In Kenya, a large portion of the population is unable to have face-to-face consults with medical providers and as a result, much of the care is triaged through community health workers and nurses and only those patients deemed to be in critical need of hospital services are transferred to see a medical provider. This situation is made worse by the fact that there is a shortage of approximately 50% of the needed health care workforce to meet the needs of the population in Africa. Telemedicine and other telehealth services are thus meant to address the very limited access to face-to-face medical consults and high medical cost which can consequently see a reduction in poverty, improved health and well-being, improved education, and economic growth.

In places such as Lamu County, where residents face extremely limited access to healthcare, the residents have now access to care-at-a-distance through the telemedicine project initiated by Huawei, Safaricom and local partners, which allows local healthcare workers and patients to remotely consult with specialists in towns and cities. There is a scarcity of licensed doctors and specialists in Lamu, and telemedicine is expected to transform medical care for low-income families in the region by reducing travel time and expenses; and 50% more patients will attend referrals each year, leading to significantly better patient outcomes. The Philips Foundation, a registered charity and platform for the worldwide societal activities of Royal Philips, has also since introduced mobile ultrasound technology, meant to improve maternal and child health, where ways will be explored to use mobile ultrasound technology at primary care level, performed by midwives and supported by remote experts through telehealth, to enhance availability of affordable services in the underserved communities and remote areas of Kenya.

Indeed, Kenya Medical Practitioners and Dentists Council beginning in 2021 commenced issuing provisional approvals for various registered and licensed health institutions to offer virtual medical services. So far, about 20 health facilities have received approvals from KMPDC to offer telemedicine services in the country. However, the approvals only granted permission for the health facilities to offer virtual consultation health services and are subject to review every three months from date of issue. The move is in response to the growing need for the services due to physical distancing rules imposed by the government to curb the spread of COVID-19.

However, while telemedicine is no longer new in Kenya, the regulators are yet to review the regulatory framework to not only promote its growth and development, but also to ensure that those who use it are either held or benefit from the same standards of professional care as those under the traditional forms of medical care and data protection. Notably, the Health Act, 2017 defines “e-Health” to mean the combined use of electronic communication and information technology in the health Sector including telemedicine. Telemedicine and telehealth services can indeed supplement the investment in physical infrastructure in provision of health care services.

It has been noted that telemedicine is facing challenges due to gaps in implementation of the existing eHealth policy, lack of incorporation of the service aspect of eHealth, thereby not addressing the patient and absent regulation guiding some parts of the service aspect of eHealth, thereby leaving the patient exposed to unregulated practice. Hence, the proposed e-Health regulations were drafted in 2019 which, among others, bar health service providers from hosting the platforms outside Kenya (for data protection) and cover areas of virtual medicine, use of artificial intelligence in health and e-Learning including training of medical personnel and online based continuous professional development (CPD) points. Further, the regulations address establishment of virtual medical facilities prescribing disciplinary measures for any form of misconduct.

In addition to the Health Act, other relevant laws relating to ICT which is a key component of telemedicine regulate aspects of telemedicine or issues that are relevant to it. These acts include the Data Protection Act and the Consumer Protection Act. The laws regulating healthcare and health services providers have also put in place measures to safeguard against quacks taking advantage of technology to practice medicine or provide healthcare services against the law. Still, there is a pressing need for enactment of a unified law which regulates all aspects of telemedicine in Kenya to ensure certainty in regulatory compliance and to give confidence to investors venturing in the area on what to expect.

The issues of data privacy and use and storage of patient information is also need to be addressed to safeguard patients. Presently, data protection and privacy laws protect health data and the Data Protection Act imposes professional confidentiality. The HIV/AIDS Prevention and Control Act also provides for measures that apply in handling data and information relating to HIV status of patients. The problem arises because the use telemedicine exposes health services provisions to risk of cyberattacks which can see health data being hacked for ransom. It thus becomes necessary to put in place specific and dedicated regulations dealing with data protection in telemedicine to guarantee all angles are covered and reassure Kenyans who are concerned about their privacy in using ICT facilities to access healthcare.

There is no question telemedicine is here to stay and offers opportunities for huge saving especially in travelling costs and maximizing healthcare staff in enhancing access to health services in Kenya and beyond. Indeed, telemedicine promises to help in making the right to the highest attainable standard of health available to even more Kenyans. But issues such as language barriers need to be tackled and where necessary dedicated research on how artificial intelligence and machine learning can be adopted to enhance telemedicine offerings should be widely explored. The starting point is to put in place an elaborate legal and regulatory framework for telemedicine to be able to define who is a telemedicine services provide and what is expected of them to serve Kenyans better.

*This is article is an extract from an article by Dr. Kariuki Muigua, PhD Muigua, K., “Ensuring Healthy Lives and Well-being for All Kenyans,” Available at: http://kmco.co.ke/wp-content/uploads/2020/12/Ensuring-Healthy-Lives-and-Wellbeing-for-All-Kenyans-Kariuki-Muigua-December-2020.pdf. Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021 and nominated as ADR Practitioner of the Year (Nairobi Legal Awards) 2021. 

References

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Braveman, P. and Laura Gottlieb, ‘The Social Determinants of Health: It’s Time to Consider the Causes of the Causes’ (2014) 129 Public Health Reports 19.

Dominguez, E., The Right to Health,’ Icelandic Human Rights Centre, Available at: https://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/substantive-human-rights/the-right-to-health (accessed 23/11/2021).

Health Act, No. 21 of 2017, Laws of Kenya.

Kenya Health Policy 2012–2030.

Kiluwa Limited & another v Commissioner of Lands & 3 others [2015] eKLR.

KMPDC, “Report of Technical Working Group to Develop Guidelines and Checklists for Report on the Regulation of Electronic Health Practice in the Country,” Available at:https://kmpdc.go. ke/resources/4.%20Draft%200%20-%20Electronic%20Health%20Regulation.pdf (accessed 23/11/2021).

Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR.

Muigua, K., “Reconceptualising the Right to Clean and Healthy Environment in Kenya.” (2015).

Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (“Banjul Charter”), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).

Peter K. Waweru v Republic [2006] eKLR.

Preamble, Constitution of the World Health Organization, Basic Documents, Forty-fifth edition, Supplement, October 2006, pp.1-18.

Shehla Zia v. WAPDA, PLD 1994 SC 693 Justice SALEEM AKHTAR (Supreme Court of Pakistan).

Tomaziu-Todosia M, ‘The Importance of Public Health Policies in the Social-Economic Development of Romania’ (2019) 10 Postmodern Openings 162.

Treaty making and Ratification Act, No. 45 of 2012, Laws of Kenya.

UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000, E/C.12/2000/4.

UN Commission on Human Rights, Convention on the Rights of the Child, 7 March 1990, E/CN.4/RES/1990/74.

UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).

UN General Assembly, International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights and Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1966, A/RES/2200.

UN General Assembly, Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, A/RES/34/180.

WHO, ‘Sustainable Development Goal 3: Health,’ Available at: https://www.who.int/health-topics/sustainable-development-goals#tab=tab_1 (accessed 23/11/2021).

Zalo, M., “The Emerging Practice of Telemedicine and the Law: Kenya’s Stance,” Available at:  https://cipit.strathmore.edu/the-emerging-practice-of-telemedicine-and-the-law-kenyas-stance/ 1 (accessed 23/11/2021).

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Former KCB Company Secretary Sues Over Unlawful Dismissal

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Former KCB Group Company Secretary Joseph Kamau Kania who has sued the Bank for Unlawful Dismissal

Former KCB Group Company Secretary Joseph Kamau Kania has sued the lender seeking reinstatement or be compensated for illegal sacking almost three years ago. Lawyer Kania was the KCB Group company secretary until restructuring of the lender in 2021 that saw some senior executives dropped.

Through the firm of Senior Counsel Wilfred Nderitu, Kamau wants the court to order KCB Group to unconditionally reinstate him to employment without altering any of the contractual terms until his retirement in December 2025.

In his court documents filed before Employment and Labour Relations Court, the career law banker seeks the court to declare the reorganization of the company structure a nullity and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution. He further wants the court to declare that the position of Group Company Secretary did not at any time cease to exist within the KCB Group structure.

He further urged the Employment Court to declare that the recruitment and appointment of Bonnie Okumu, his former assistant, as the Group Company Secretary, in relation to the contemporaneous termination of his employment, was unprocedural, insufficient and inappropriate to infer a lawful termination of his employment.

“A declaration that the factual and legal circumstances of the Petitioner’s termination of employment were insufficient and inappropriate to infer a redundancy against him, and that any redundancy declared by the KCB Group in relation to him was therefore null, void and of no legal effect and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution,” seeks lawyer Kamau.

Kamau says he was subjected to discriminatory practices by the KCB Bank Group in violation of his fundamental right to equality and freedom from discrimination as guaranteed in Article 27 of the Constitution and the termination of his employment was unfair, unjustified, illegal, null and void.

Lawyer Kamau further seeks the court to declare that the Non-Compete Clause in the 2016 Contract is unenforceable by the KCB Group as against him and is voidable by him as against the Bank ab initio, byreason of the termination of the Petitioner’s employment having been a violation of Articles 41(1) and 47(1) and (2) of the Constitution, and of the Employment Act.

He also wants the Employment Court to find that finding that KCB’s group legal representation by Messrs of Mohammed Muigai LLP Advocates law firm in respect of his claim for unlawful termination of employment resulted in a clear conflict of interest by reason of the fact that a Founding and Senior Partner at the said firm lawyer Mohammed Nyaoga is also the Chairman of the CBK’s Board of Directors.

“A Declaration that the circumstances of KCB’s legal representation by Messrs. Mohammed Muigai LLP Advocates resulted in a violation of the Petitioner’s fundamental right to have the employment dispute decided independently and impartially, as guaranteed in Article 50(1) of the Constitution,” seeks lawyer Kamau.

Kamau is seeking damages against both KCB Group and Central Bank of Kenya jointly and severally for the violation of his constitutional and fundamental right to fair labour practices.

He wants  further wants court to declare that CBK is liable to petitioner on account of its breach of statutory duty to effectively regulate KCB Group to ensure that KCB complied with the Central Bank of Kenya Prudential Guidelines and all other Laws, Rules, Codes and Standards, and that, as an issuer of securities, it complied with capital markets legislation.

Kamau through his lawyer Nderitu told the court that he was involved in Shareholder engagement in introducing the Group aide-mémoire that significantly improved the management of the Annual General Meetings, including obtaining approval without voting through the Memorandum and Articles of Association of Kenya Commercial Bank Limited among others.

He said that during his employment at KCB Bank Kenya and with the KCB Group, he initially worked well with former KCB CEO Joseph Oigara until 2016 when the CEO allegedly started sidelining him by removing the legal function from his reporting line.

He further claims he was transferred from the Group’s offices at Kencom House to its offices Upper Hill under the guise that the Petitioner was merely to support the KCB Group Board.

He adds that at that point his roles were given to Okumu for reasons that were not related to work demands.  He stated that Oigara at one time proposed that he should leave his role in the KCB Group and go and serve as the Company Secretary of the National Bank of Kenya Limited, a subsidiary of the Group, a suggestion which he disagreed with to Oigara’s utter annoyance.

Kamau stated that his work was thenceforth unfairly discredited, leading to his being taken through a disciplinary process whose intended outcome failed miserably, and the Petitioner was vindicated.

“More specifically, the Petitioner contends that the purported creation of a new organizational structure towards the end of 2020 was in fact Oigara’s orchestration targeted to remove certain individuals by requiring them to undergo interviews in the pretext that new roles were created, and amounted to a further violation of the Petitioner’s fundamental right to fair labour practices under Article 41(1) of the Constitution,” said in his court documents.

He further adds that this sham reorganization demonstrates how the role of the KCB Group Company Secretary purportedly ceased to be and was then very briefly replaced with a new role of the KCB Group General Counsel. The role of KCB Group Company Secretary then ‘resurfaced’ immediately thereafter, in total violation of legal and regulatory requirements.

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Court of Appeal Upholds Eviction of Radcliffes from Karen Land

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Adrian Radcliffe, the Expatriate Squatter, Evicted from Karen Property by Innocent Purchaser for Value

The Court of Appeal has stayed the decision of the Environment and Land Court purporting to reinstate Adrian Radcliffe into possession of the 5.7 Acre Karen Land by Kena Properties Ltd after eviction by the lawful owners in February 2022. Adrian Radcliffe who was evicted by Kena Properties Ltd, the innocent purchaser of the Land for value.

Before his eviction, Mr. Radcliffe had been living on the land as a squatter expatriate for 33 years without paying any rent. Since he moved into the property as a tenant, he only paid deposit for the land in August 1989 despite corresponding severally with the owner of the land. His attempt to acquire the land by adverse possession claim filed in 2005 was dismissed by Court in 2011 on the basis that he has engaged with the owner of the land July 1997 and agreed to buy the land which he failed to do. The High Court [Justice Kalpana Rawal as she then was] concluded that:

“His [Mr. Adrian Radcliffe] averments that he did not have any idea of the whereabouts of the Defendant and that he could possibly be not alive, were not only very sad but mala fide in view of the correspondence on record addressed by him to the Defendant’s wife. I would thus find that the averments made by him to the contrary are untrue looking to the facts of this case.”

On 10th March 2022, Mr. Adrian Radcliffe and Family purported to obtain court orders for reinstatement into the land. However, the Court of Appeal issued an interim stay of execution of the said orders. The Court of Appeal has now granted the application of Kena Properties Ltd and stayed the execution of the Environment and Land Court Order pending the hearing and determination of the Appeal.

The Court also stayed the proceedings at the Environment and Land Court on the matter during the pendency of the Appeal. In effect, the eviction orders issued by the Chief Magistrate Court for eviction of Mr. Adrian Radcliffe in favour of Kena Properties as the purchaser of the property for value were upheld and the company now enjoys unfettered ownership and possession of the suit property until the conclusion of the Appeal.

The Court of Appeal in granting the orders sought by Kena Properties Ltd concurred with Kena Properties Ltd that as the property owner it had an arguable appeal with a high probability of success which would be rendered nugatory if Adrian Radcliffe a trespasser was to resume his unlawful possession of the suit property, erect structures thereon, recklessly use or abuse the said suit property as he deems fit. In any case, that is bound to fundamentally alter the state of the suit property and render it unusable by Kena Properties Ltd as the property owner.

At the same time, the Appellate Court rubbished the argument of Adrian Radcliffe in opposition to the application for stay that he has been in occupation of the suit property for more than 30 years and that he and his family were unlawfully evicted from the suit property on 4th February, 2022. The Court also rejected Radcliffe’s claim that Kena Properties Ltd has no valid title to the suit property and held that as the purchaser, the company was entitled to enjoy ownership and possession of their property during the pendency of the appeal.

The Court dismissed claims of Mr. Adrian Radcliffe that Kena Properties Ltd as the property owner acquired title to the suit property illegally and unprocedurally finding to the contrary. Further, it rejected Adrian Radcliffe’s claim that Kena Properties as the purchaser cannot evict a legal occupier of a property putting paid to the claim that he was a legal occupier at the time of eviction.

As a matter of fact, Mr. Adrian Radcliffe cannot claim to be the legal occupier of the property having attempted to acquire it by adverse possession before the High Court thwarted his fraudulent scheme on 28th February 2011. Mr. Radcliffe did not appeal the 2011 High Court decision meaning it is still the law that he is not the owner of the land nor the legal occupier of the land having attempted to adversely acquire against the interests of the lawful owner who sold it to Kena Properties.

Mr. Adrian Radcliffe is a well-to-do Water, Sanitation and Hygiene (WaSH) UNICEF consultant and former UN employee (who has been earning hefty House Allowance). Many have wondered why he has been defaulting in paying rent for 33 years on the prime plot of land in Karen while living large and taking his kids to most expensive schools in Kenya. No question, a local Kenyan could never have gotten away with such selfish impunity.

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Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1

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The Journal of Conflict Management and Sustainable Development, Volume 9, Issue No. 1, which is edited by and published by Dr. Kariuki Muigua, PhD is out and stays true to the reputation of the journal in providing a platform for scholarly debate on thematic areas in the fields of Conflict Management and Sustainable Development. The current issue published in September 2022 covers diverse topics including Resolving Oil and Gas Disputes in Africa; National Environment Tribunal, Sustainable Development and Access to Justice in Kenya; Protection of Cultural Heritage During War; The Role of Water in the attainment of Sustainable Development in Kenya; Property Rights in Human Biological Materials in Kenya; Nurturing our Wetlands for Biodiversity Conservation; Investor-State Dispute Resolution in a Fast-Paced World; Status of Participation of Women in Mediation; Business of Climate Change and Critical Analysis of World Trade Organization’s Most-Favored Nation (MFN) Treatment.

Dr. Wilfred A. Mutubwa and Eunice Njeri Ng’ang’a in “Resolving Oil and Gas Disputes in an Integrating Africa: An Appraisal of the Role of Regional Arbitration Centres” explore the nature of disputes in the realm of oil and gas in Africa taking a look into the recent continental and sub-regional developments in a bid to establish regional integration. Additionally, it tests the limits of intra-African trade and dispute resolution and the imperatives for the African regional courts and arbitration centres. In “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” Dr. Kariuki Muigua discusses the role played by the National Environment Tribunal (NET) in promoting access to justice and enhancing the principles of sustainable development in Kenya. The paper also highlights challenges facing the tribunal and proposes recommendations towards enhancing the effectiveness of the tribunal.

Dr. Kenneth Wyne Mutuma in “Protecting Cultural Heritage in Times of War: A Case for History,” argues that cultural heritage is at the heart of human existence and its preservation even in times of war is sacrosanct. It concludes that it is thus critical for states to take positive and tangible steps to ensure environmental conservation and protection during war within the ambit of the existing international legal framework. In “The Role of Water in the attainment of Sustainable Development in Kenya,” Jack Shivugu critically evaluates the role of water in the attainment of sustainable development in Kenya and argues water plays a critical role in the attainment of the sustainable development goals both in Kenya and at the global stage. The paper interrogates some of the water and Sustainable Development concerns in Kenya including water pollution, water scarcity and climate change and suggests practical ways to enhance the role of water in the Sustainable Development agenda.

Dr. Paul Ogendi in “Collective Property Rights in Human Biological Materials in Kenya,” reflects on property rights in relation to human biological materials obtained from research participants participating in genomic research. He argues that property rights are crucial in genomic research because they can help avoid exploitation or abuse of such precious material by researchers. In “Nurturing our Wetlands for Biodiversity Conservation,” Dr. Kariuki Muigua notes that Wetlands have a vital role in not just delivering ecological services to meet human needs, but also in biodiversity conservation. Wetlands are vital habitat sites for many species and a source of water, both of which contribute to biodiversity protection. The paper examines the role of wetlands in biodiversity conservation and how these wetland resources might be managed to improve biodiversity conservation.

Oseko Louis D. Obure in “Investor-State Dispute Resolution in a Fast-Paced World,” preponderance of disputes between States or States and Investors created need for a robust, effective, and efficient mechanisms not only for the resolution of these disputes but also their prevention. He notes that developing states lead in being parties to Investor-State Disputes (ISD) particularly as respondents. He proceeds to conceptualize and problematize investor-state disputes resolution in a fast-paced world. Lilian N.S. Kong’ani and Dr. Kariuki Muigua in “Status of Participation of Women in Mediation: A case Study of Development Project Conflict in Olkaria IV, Kenya” review the status of participation of women in mediation to resolve conflicts between KenGen and the community. The paper demonstrates a need for further democratization of the mediation processes to cater for more participation of women to enhance the mediation results and offer more sustainable resolutions.

Felix Otieno Odhiambo and Melinda Lorenda Mueni in “The Business of Climate Change: An Analysis of Carbon Trading in Kenya analyses the business of carbon trading in the context of Kenya’s legal framework. The article examines the legal framework that underpins climate change into the Kenyan legal system and provides an exposition of the concept of carbon trading and its various forms. Michael Okello, in “Critical Analysis of World Trade Organisation’s Most-Favored Nation (MFN) Treatment: Prospects, Challenges and Emerging Trends in the 21st Century,” highlights the rationale behind MFN treatment and also restates the vision of multilateral trade to achieve equitable and special interventions with respect to trade in goods, services and trade related intellectual property rights in the affected states.

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