CODING: Words stricken are deletions; words underlined are additions.



                                                  SENATE AMENDMENT

    Bill No. CS for CS for SB 370

    Amendment No. ___   Barcode 790132

                            CHAMBER ACTION
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10  ______________________________________________________________

11  Senator Saunders moved the following amendment:

12

13         Senate Amendment (with title amendment) 

14         On page 12, lines 17-31, delete those lines

15

16  and insert:

17         Section 13.  Section 456.026, Florida Statutes, is

18  amended to read:

19         456.026  Annual report concerning finances,

20  administrative complaints, disciplinary actions, and

21  recommendations.--The department is directed to prepare and

22  submit a report to the President of the Senate and the Speaker

23  of the House of Representatives by November 1 of each year. In

24  addition to finances and any other information the Legislature

25  may require, the report shall include statistics and relevant

26  information, profession by profession, detailing:

27         (1)  The revenues, expenditures, and cash balances for

28  the prior year, and a review of the adequacy of existing fees.

29         (2)  The number of complaints received and

30  investigated.

31         (3)  The number of findings of probable cause made.

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  1         (4)  The number of findings of no probable cause made.

  2         (5)  The number of administrative complaints filed.

  3         (6)  The disposition of all administrative complaints.

  4         (7)  A description of disciplinary actions taken.

  5         (8)  A description of any effort by the department to

  6  reduce or otherwise close any investigation or disciplinary

  7  proceeding not before the Division of Administrative Hearings

  8  under chapter 120 or otherwise not completed within 1 year

  9  after the initial filing of a complaint under this chapter.

10         (9)  The status of the development and implementation

11  of rules providing for disciplinary guidelines pursuant to s.

12  456.079.

13         (10)  Such recommendations for administrative and

14  statutory changes necessary to facilitate efficient and

15  cost-effective operation of the department and the various

16  boards.

17         (11)  The performance measures for all bureaus, units,

18  boards, and contracted entities required by the department to

19  reflect the expected quality and quantity of services, and a

20  description of any effort to improve the performance of such

21  services.

22         Section 14.  Subsection (4) is added to section

23  456.074, Florida Statutes, to read:

24         456.074  Certain health care practitioners; immediate

25  suspension of license.--

26         (4)  Upon receipt of information that a

27  Florida-licensed health care practitioner has defaulted on a

28  student loan issued or guaranteed by the state or the Federal

29  Government, the department shall notify the licensee by

30  certified mail that he or she shall be subject to immediate

31  suspension of license unless, within 45 days after the date of

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  1  mailing, the licensee provides proof that new payment terms

  2  have been agreed upon by all parties to the loan.  The

  3  department shall issue an emergency order suspending the

  4  license of any licensee who, after 45 days following the date

  5  of mailing from the department, has failed to provide such

  6  proof.  Production of such proof shall not prohibit the

  7  department from proceeding with disciplinary action against

  8  the licensee pursuant to s. 456.073.

  9         Section 15.  Paragraph (k) of subsection (1) of section

10  456.072, Florida Statutes, is amended, and subsection (2) of

11  that section is reenacted, to read:

12         456.072  Grounds for discipline; penalties;

13  enforcement.--

14         (1)  The following acts shall constitute grounds for

15  which the disciplinary actions specified in subsection (2) may

16  be taken:

17         (k)  Failing to perform any statutory or legal

18  obligation placed upon a licensee.  For purposes of this

19  section, failing to repay a student loan issued or guaranteed

20  by the state or the Federal Government in accordance with the

21  terms of the loan or failing to comply with service

22  scholarship obligations shall be considered a failure to

23  perform a statutory or legal obligation, and the minimum

24  disciplinary action imposed shall be a suspension of the

25  license until new payment terms are agreed upon or the

26  scholarship obligation is resumed, followed by probation for

27  the duration of the student loan or remaining scholarship

28  obligation period, and a fine equal to 10 percent of the

29  defaulted loan amount.  Fines collected shall be deposited

30  into the Medical Quality Assurance Trust Fund.

31         (2)  When the board, or the department when there is no

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  1  board, finds any person guilty of the grounds set forth in

  2  subsection (1) or of any grounds set forth in the applicable

  3  practice act, including conduct constituting a substantial

  4  violation of subsection (1) or a violation of the applicable

  5  practice act which occurred prior to obtaining a license, it

  6  may enter an order imposing one or more of the following

  7  penalties:

  8         (a)  Refusal to certify, or to certify with

  9  restrictions, an application for a license.

10         (b)  Suspension or permanent revocation of a license.

11         (c)  Restriction of practice or license, including, but

12  not limited to, restricting the licensee from practicing in

13  certain settings, restricting the licensee to work only under

14  designated conditions or in certain settings, restricting the

15  licensee from performing or providing designated clinical and

16  administrative services, restricting the licensee from

17  practicing more than a designated number of hours, or any

18  other restriction found to be necessary for the protection of

19  the public health, safety, and welfare.

20         (d)  Imposition of an administrative fine not to exceed

21  $10,000 for each count or separate offense. If the violation

22  is for fraud or making a false or fraudulent representation,

23  the board, or the department if there is no board, must impose

24  a fine of $10,000 per count or offense.

25         (e)  Issuance of a reprimand or letter of concern.

26         (f)  Placement of the licensee on probation for a

27  period of time and subject to such conditions as the board, or

28  the department when there is no board, may specify. Those

29  conditions may include, but are not limited to, requiring the

30  licensee to undergo treatment, attend continuing education

31  courses, submit to be reexamined, work under the supervision

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  1  of another licensee, or satisfy any terms which are reasonably

  2  tailored to the violations found.

  3         (g)  Corrective action.

  4         (h)  Imposition of an administrative fine in accordance

  5  with s. 381.0261 for violations regarding patient rights.

  6         (i)  Refund of fees billed and collected from the

  7  patient or a third party on behalf of the patient.

  8         (j)  Requirement that the practitioner undergo remedial

  9  education.

10

11  In determining what action is appropriate, the board, or

12  department when there is no board, must first consider what

13  sanctions are necessary to protect the public or to compensate

14  the patient. Only after those sanctions have been imposed may

15  the disciplining authority consider and include in the order

16  requirements designed to rehabilitate the practitioner. All

17  costs associated with compliance with orders issued under this

18  subsection are the obligation of the practitioner.

19         Section 16.  The Department of Health shall obtain from

20  the United States Department of Health and Human Services

21  information necessary to investigate and prosecute health care

22  practitioners for failing to repay a student loan or comply

23  with scholarship service obligations pursuant to s.

24  456.072(1)(k), Florida Statutes.  The department shall obtain

25  from the United States Department of Health and Human Services

26  a list of default health care practitioners each month, along

27  with the information necessary to investigate a complaint in

28  accordance with s. 456.073, Florida Statutes.  The department

29  may obtain evidence to support the investigation and

30  prosecution from any financial institution or educational

31  institution involved in providing the loan or education to the

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  1  practitioner.  The department shall report to the Legislature

  2  as part of the annual report required by s. 456.026, Florida

  3  Statutes, the number of practitioners in default, along with

  4  the results of the department's investigations and

  5  prosecutions, and the amount of fines collected from

  6  practitioners prosecuted for violating s. 456.072(1)(k),

  7  Florida Statutes.

  8         Section 17.  Section 456.073, Florida Statutes, is

  9  amended to read:

10         456.073  Disciplinary proceedings.--Disciplinary

11  proceedings for each board shall be within the jurisdiction of

12  the department.

13         (1)  The department, for the boards under its

14  jurisdiction, shall cause to be investigated any complaint

15  that is filed before it if the complaint is in writing, signed

16  by the complainant, and legally sufficient. A complaint is

17  legally sufficient if it contains ultimate facts that show

18  that a violation of this chapter, of any of the practice acts

19  relating to the professions regulated by the department, or of

20  any rule adopted by the department or a regulatory board in

21  the department has occurred. In order to determine legal

22  sufficiency, the department may require supporting information

23  or documentation. The department may investigate, and the

24  department or the appropriate board may take appropriate final

25  action on, a complaint even though the original complainant

26  withdraws it or otherwise indicates a desire not to cause the

27  complaint to be investigated or prosecuted to completion. The

28  department may investigate an anonymous complaint if the

29  complaint is in writing and is legally sufficient, if the

30  alleged violation of law or rules is substantial, and if the

31  department has reason to believe, after preliminary inquiry,

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  1  that the violations alleged in the complaint are true. The

  2  department may investigate a complaint made by a confidential

  3  informant if the complaint is legally sufficient, if the

  4  alleged violation of law or rule is substantial, and if the

  5  department has reason to believe, after preliminary inquiry,

  6  that the allegations of the complainant are true. The

  7  department may initiate an investigation if it has reasonable

  8  cause to believe that a licensee or a group of licensees has

  9  violated a Florida statute, a rule of the department, or a

10  rule of a board. Except as provided in ss. 458.331(9),

11  459.015(9), 460.413(5), and 461.013(6), when an investigation

12  of any subject is undertaken, the department shall promptly

13  furnish to the subject or the subject's attorney a copy of the

14  complaint or document that resulted in the initiation of the

15  investigation. The subject may submit a written response to

16  the information contained in such complaint or document within

17  20 days after service to the subject of the complaint or

18  document. The subject's written response shall be considered

19  by the probable cause panel. The right to respond does not

20  prohibit the issuance of a summary emergency order if

21  necessary to protect the public. However, if the secretary, or

22  the secretary's designee, and the chair of the respective

23  board or the chair of its probable cause panel agree in

24  writing that such notification would be detrimental to the

25  investigation, the department may withhold notification. The

26  department may conduct an investigation without notification

27  to any subject if the act under investigation is a criminal

28  offense.

29         (2)  The department shall allocate sufficient and

30  adequately trained staff to expeditiously and thoroughly

31  determine legal sufficiency and investigate all legally

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  1  sufficient complaints. For purposes of this section, it is the

  2  intent of the Legislature that the term "expeditiously" means

  3  that the department complete the report of its initial

  4  investigative findings and recommendations concerning the

  5  existence of probable cause within 6 months after its receipt

  6  of the complaint. The failure of the department, for

  7  disciplinary cases under its jurisdiction, to comply with the

  8  time limits of this section while investigating a complaint

  9  against a licensee constitutes harmless error in any

10  subsequent disciplinary action unless a court finds that

11  either the fairness of the proceeding or the correctness of

12  the action may have been impaired by a material error in

13  procedure or a failure to follow prescribed procedure. When

14  its investigation is complete and legally sufficient, the

15  department shall prepare and submit to the probable cause

16  panel of the appropriate regulatory board the investigative

17  report of the department. The report shall contain the

18  investigative findings and the recommendations of the

19  department concerning the existence of probable cause. The

20  department shall not recommend a letter of guidance in lieu of

21  finding probable cause if the subject has already been issued

22  a letter of guidance for a related offense. At any time after

23  legal sufficiency is found, the department may dismiss any

24  case, or any part thereof, if the department determines that

25  there is insufficient evidence to support the prosecution of

26  allegations contained therein. The department shall provide a

27  detailed report to the appropriate probable cause panel prior

28  to dismissal of any case or part thereof, and to the subject

29  of the complaint after dismissal of any case or part thereof,

30  under this section. For cases dismissed prior to a finding of

31  probable cause, such report is confidential and exempt from s.

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  1  119.07(1). The probable cause panel shall have access, upon

  2  request, to the investigative files pertaining to a case prior

  3  to dismissal of such case. If the department dismisses a case,

  4  the probable cause panel may retain independent legal counsel,

  5  employ investigators, and continue the investigation and

  6  prosecution of the case as it deems necessary.

  7         (3)  As an alternative to the provisions of subsections

  8  (1) and (2), when a complaint is received, the department may

  9  provide a licensee with a notice of noncompliance for an

10  initial offense of a minor violation. Each board, or the

11  department if there is no board, shall establish by rule those

12  minor violations under this provision which do not endanger

13  the public health, safety, and welfare and which do not

14  demonstrate a serious inability to practice the profession.

15  Failure of a licensee to take action in correcting the

16  violation within 15 days after notice may result in the

17  institution of regular disciplinary proceedings.

18         (4)  The determination as to whether probable cause

19  exists shall be made by majority vote of a probable cause

20  panel of the board, or by the department, as appropriate. Each

21  regulatory board shall provide by rule that the determination

22  of probable cause shall be made by a panel of its members or

23  by the department. Each board may provide by rule for multiple

24  probable cause panels composed of at least two members. Each

25  board may provide by rule that one or more members of the

26  panel or panels may be a former board member. The length of

27  term or repetition of service of any such former board member

28  on a probable cause panel may vary according to the direction

29  of the board when authorized by board rule. Any probable cause

30  panel must include one of the board's former or present

31  consumer members, if one is available, is willing to serve,

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  1  and is authorized to do so by the board chair. Any probable

  2  cause panel must include a present board member. Any probable

  3  cause panel must include a former or present professional

  4  board member. However, any former professional board member

  5  serving on the probable cause panel must hold an active valid

  6  license for that profession. All proceedings of the panel are

  7  exempt from s. 286.011 until 10 days after probable cause has

  8  been found to exist by the panel or until the subject of the

  9  investigation waives his or her privilege of confidentiality.

10  The probable cause panel may make a reasonable request, and

11  upon such request the department shall provide such additional

12  investigative information as is necessary to the determination

13  of probable cause. A request for additional investigative

14  information shall be made within 15 days from the date of

15  receipt by the probable cause panel of the investigative

16  report of the department or the agency. The probable cause

17  panel or the department, as may be appropriate, shall make its

18  determination of probable cause within 30 days after receipt

19  by it of the final investigative report of the department. The

20  secretary may grant extensions of the 15-day and the 30-day

21  time limits. In lieu of a finding of probable cause, the

22  probable cause panel, or the department if there is no board,

23  may issue a letter of guidance to the subject. If, within the

24  30-day time limit, as may be extended, the probable cause

25  panel does not make a determination regarding the existence of

26  probable cause or does not issue a letter of guidance in lieu

27  of a finding of probable cause, the department must make a

28  determination regarding the existence of probable cause within

29  10 days after the expiration of the time limit.  If the

30  probable cause panel finds that probable cause exists, it

31  shall direct the department to file a formal complaint against

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  1  the licensee. The department shall follow the directions of

  2  the probable cause panel regarding the filing of a formal

  3  complaint. If directed to do so, the department shall file a

  4  formal complaint against the subject of the investigation and

  5  prosecute that complaint pursuant to chapter 120. However, the

  6  department may decide not to prosecute the complaint if it

  7  finds that probable cause has been improvidently found by the

  8  panel. In such cases, the department shall refer the matter to

  9  the board. The board may then file a formal complaint and

10  prosecute the complaint pursuant to chapter 120. The

11  department shall also refer to the board any investigation or

12  disciplinary proceeding not before the Division of

13  Administrative Hearings pursuant to chapter 120 or otherwise

14  completed by the department within 1 year after the filing of

15  a complaint. The department, for disciplinary cases under its

16  jurisdiction, must establish a uniform reporting system to

17  quarterly refer to each board the status of any investigation

18  or disciplinary proceeding that is not before the Division of

19  Administrative Hearings or otherwise completed by the

20  department within 1 year after the filing of the complaint.

21  Annually, the department, in consultation with the applicable

22  probable cause panel, must establish a plan to expedite or

23  otherwise close any investigation or disciplinary proceeding

24  that is not before the Division of Administrative Hearings or

25  otherwise completed by the department within 1 year after the

26  filing of the complaint.  A probable cause panel or a board

27  may retain independent legal counsel, employ investigators,

28  and continue the investigation as it deems necessary; all

29  costs thereof shall be paid from a trust fund used by the

30  department to implement this chapter. All proceedings of the

31  probable cause panel are exempt from s. 120.525.

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  1         (5)  A formal hearing before an administrative law

  2  judge from the Division of Administrative Hearings shall be

  3  held pursuant to chapter 120 if there are any disputed issues

  4  of material fact. The administrative law judge shall issue a

  5  recommended order pursuant to chapter 120. If any party raises

  6  an issue of disputed fact during an informal hearing, the

  7  hearing shall be terminated and a formal hearing pursuant to

  8  chapter 120 shall be held.

  9         (6)  The appropriate board, with those members of the

10  panel, if any, who reviewed the investigation pursuant to

11  subsection (4) being excused, or the department when there is

12  no board, shall determine and issue the final order in each

13  disciplinary case. Such order shall constitute final agency

14  action. Any consent order or agreed-upon settlement shall be

15  subject to the approval of the department.

16         (7)  The department shall have standing to seek

17  judicial review of any final order of the board, pursuant to

18  s. 120.68.

19         (8)  Any proceeding for the purpose of summary

20  suspension of a license, or for the restriction of the

21  license, of a licensee pursuant to s. 120.60(6) shall be

22  conducted by the secretary of the Department of Health or his

23  or her designee, as appropriate, who shall issue the final

24  summary order.

25         (9)(a)  The department shall periodically notify the

26  person who filed the complaint, as well as the patient or the

27  patient's legal representative, of the status of the

28  investigation, indicating whether probable cause has been

29  found and the status of any civil action or administrative

30  proceeding or appeal.

31         (b)  In any disciplinary case for which probable cause

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  1  has been found, the department shall provide to the person who

  2  filed the complaint a copy of the administrative complaint

  3  and:

  4         1.  A written explanation of how an administrative

  5  complaint is resolved by the disciplinary process.

  6         2.  A written explanation of how and when the person

  7  may participate in the disciplinary process.

  8         3.  A written notice of any hearing before the Division

  9  of Administrative Hearings or the regulatory board at which

10  final agency action may be taken.

11         (c)  In any disciplinary case for which probable cause

12  is not found, the department shall so inform the person who

13  filed the complaint and notify that person that he or she may,

14  within 60 days, provide any additional information to the

15  department which may be relevant to the decision. To

16  facilitate the provision of additional information, the person

17  who filed the complaint may receive, upon request, a copy of

18  the department's expert report that supported the

19  recommendation for closure, if such a report was relied upon

20  by the department. In no way does this require the department

21  to procure an expert opinion or report if none was used.

22  Additionally, the identity of the expert shall remain

23  confidential. In any administrative proceeding under s.

24  120.57, the person who filed the disciplinary complaint shall

25  have the right to present oral or written communication

26  relating to the alleged disciplinary violations or to the

27  appropriate penalty.

28         (10)  The complaint and all information obtained

29  pursuant to the investigation by the department are

30  confidential and exempt from s. 119.07(1) until 10 days after

31  probable cause has been found to exist by the probable cause

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  1  panel or by the department, or until the regulated

  2  professional or subject of the investigation waives his or her

  3  privilege of confidentiality, whichever occurs first. Upon

  4  completion of the investigation and a recommendation by the

  5  department to find probable cause, and pursuant to a written

  6  request by the subject or the subject's attorney, the

  7  department shall provide the subject an opportunity to inspect

  8  the investigative file or, at the subject's expense, forward

  9  to the subject a copy of the investigative file.

10  Notwithstanding s. 456.057, the subject may inspect or receive

11  a copy of any expert witness report or patient record

12  connected with the investigation if the subject agrees in

13  writing to maintain the confidentiality of any information

14  received under this subsection until 10 days after probable

15  cause is found and to maintain the confidentiality of patient

16  records pursuant to s. 456.057. The subject may file a written

17  response to the information contained in the investigative

18  file. Such response must be filed within 20 days of mailing by

19  the department, unless an extension of time has been granted

20  by the department. This subsection does not prohibit the

21  department from providing such information to any law

22  enforcement agency or to any other regulatory agency.

23         (11)  A privilege against civil liability is hereby

24  granted to any complainant or any witness with regard to

25  information furnished with respect to any investigation or

26  proceeding pursuant to this section, unless the complainant or

27  witness acted in bad faith or with malice in providing such

28  information.

29         (12)(a)  No person who reports in any capacity, whether

30  or not required by law, information to the department with

31  regard to the incompetence, impairment, or unprofessional

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  1  conduct of any health care provider licensed under chapter

  2  458, chapter 459, chapter 460, chapter 461, chapter 462,

  3  chapter 463, chapter 464, chapter 465, or chapter 466 shall be

  4  held liable in any civil action for reporting against such

  5  health care provider if such person acts without intentional

  6  fraud or malice.

  7         (b)  No facility licensed under chapter 395, health

  8  maintenance organization certificated under part I of chapter

  9  641, physician licensed under chapter 458, or osteopathic

10  physician licensed under chapter 459 shall discharge, threaten

11  to discharge, intimidate, or coerce any employee or staff

12  member by reason of such employee's or staff member's report

13  to the department about a physician licensed under chapter

14  458, chapter 459, chapter 460, chapter 461, or chapter 466 who

15  may be guilty of incompetence, impairment, or unprofessional

16  conduct so long as such report is given without intentional

17  fraud or malice.

18         (c)  In any civil suit brought outside the protections

19  of paragraphs (a) and (b) in which intentional fraud or malice

20  is alleged, the person alleging intentional fraud or malice

21  shall be liable for all court costs and for the other party's

22  reasonable attorney's fees if intentional fraud or malice is

23  not proved.

24         (13)  Notwithstanding any provision of law to the

25  contrary, an administrative complaint against a licensee shall

26  be filed within 6 years after the time of the incident or

27  occurrence giving rise to the complaint against the licensee.

28  If such incident or occurrence involved criminal actions,

29  diversion of controlled substances, sexual misconduct, or

30  impairment by the licensee, this subsection does not apply to

31  bar initiation of an investigation or filing of an

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  1  administrative complaint beyond the 6-year timeframe. In those

  2  cases covered by this subsection in which it can be shown that

  3  fraud, concealment, or intentional misrepresentation of fact

  4  prevented the discovery of the violation of law, the period of

  5  limitations is extended forward, but in no event to exceed 12

  6  years after the time of the incident or occurrence.

  7         Section 18.  Sections 13-17 of this act shall apply to

  8  any loan or scholarship that is in default on or after the

  9  effective date of this act.

10

11  (Redesignate subsequent sections.)

12

13

14  ================ T I T L E   A M E N D M E N T ===============

15  And the title is amended as follows:

16         On page 2, line 1, following the first semicolon

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18  insert:

19         amending s. 456.074, F.S.; providing for an

20         emergency order suspending the license of any

21         health care practitioner who has defaulted on a

22         student loan issued or guaranteed by the state

23         or the Federal Government; amending s. 456.072,

24         F.S., and reenacting subsection (2), relating

25         to disciplinary actions; clarifying the ground

26         for disciplinary action for failing to perform

27         a statutory or legal obligation to include

28         failing to repay a student loan issued or

29         guaranteed by the state or the Federal

30         Government in accordance with the terms of the

31         loan and for failing to comply with service

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for SB 370

    Amendment No. ___   Barcode 790132





  1         scholarship obligations; providing penalties;

  2         directing the Department of Health to obtain

  3         certain information from the United States

  4         Department of Health and Human Services on a

  5         monthly basis and to include certain

  6         information in its annual report to the

  7         Legislature; amending s. 456.073, F.S.,

  8         relating to disciplinary proceedings, to

  9         conform; providing applicability;

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