WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details
Health Legislation
Amendment Bill (No.4) 1998
Date Introduced: 3 December 1998
House: House of Representatives
Portfolio: Health and Aged Care
Commencement: The formal
provisions of the Bill commence on Royal Assent.
Items of Schedules 1 and 2 commence on a day to
be proclaimed or otherwise 6 months and one day from Royal Assent.
Items in Schedule 1 contain measures which propose to regulate
certain current activities of private health insurance funds and
further to provide health funds with greater flexibility, for
example, by permitting the funds to offer their contributors
loyalty bonuses and covering all costs of pharmaceuticals
prescribed in hospital where the contributor has 100 per cent
cover. Items in Schedule 2 contain consequential amendments.
Schedule 3 contains amendments which relate to
the monitoring of changes in contribution rates of health insurance
funds. Items 1 to 7 of Schedule 3 commence on a day to be
proclaimed or otherwise 6 months and one day from Royal Assent.
Items 8 to 15 commence on a date to be fixed by proclamation that
occurs after, but not more than 2 years after, items 1 to 7
commence. Items 16 to 18 commence on a date to be fixed by
proclamation that occurs after, but not more than 2 years after,
items 8 to 15 commence.
Purpose
Measures in this Bill aim to improve the
efficiency and flexibility of the private health insurance industry
and propose several initiatives to make private health insurance
more attractive to consumers.
Background
Membership of private health insurance funds has
been in decline for much of the 1980s and 1990s, falling from 50
per cent of the population at 30 June 1984 to 30.1 per cent at
31 December 1998.(1) Although several factors have contributed
to this decline in coverage, a fundamental problem continues to be
the uneasy relationship between the universal and publicly financed
Medicare, which covers medical services and hospital services and
voluntary private health insurance, which provides coverage for
hospital services and allied health services such as physiotherapy
and dental services.
An extensive review of private health insurance
was conducted by the then Industry Commission in 1996-97, which
issued a 500 page report(2) and made 22 recommendations, most of
which were accepted by the Government. A variety of policy measures
have been implemented by governments to address the declining
coverage of private health insurance but, as yet, the decline has
only been slowed not reversed.
Measures proposed in the Health Legislation
Amendment Bill (No. 4) 1998 complement previous initiatives and
were first announced by the Government on 22 September 1998.(3)
These measures represent a major recasting of private health
insurance in Australia and are a significant departure from the
mainly incremental changes introduced since Medicare began in 1984.
Important changes include: the creation of 'approved procedures
facilities' in which certain procedures (previously restricted to
hospitals and day hospitals) may be undertaken; the opportunity for
health funds to offer their contributors a loyalty bonus; and the
return, within 2 years, of responsibility for the monitoring of
changes to health insurance premiums to the Private Health
Insurance Administration Council. The Bill proposes that health
funds will not be subject to any monitoring in regard to rule
changes, including premium changes, after a further 2 year
period.
Community rating
Community rating is a central element of
Australia's system of private health insurance. Both forms of
private health insurance [hospital insurance and ancillary (extras)
insurance] are community rated, which means that the premium of an
insurance table or policy offered by a particular health insurance
fund must be the same for all contributors and intending
contributors to that table. No one can be denied membership of a
private health insurance fund by virtue of their age or health
status. Community rating aims to ensure that the aged and
chronically ill are protected from high premiums. Community rating
is also supported by the reinsurance arrangements, which operate to
spread the cost of the elderly and chronically ill across all
funds.
The alternative to community rating is
experience or risk rating, which applies to most other forms of
insurance, such as car, household and life insurance policies. A
recent study by the Australian Institute of Health and Welfare
(AIHW) calculated that community rating had protected the elderly
from premiums which may otherwise have been as high as 6 times the
average in a risk rated environment. Similarly, people in poor
health would have been required to pay premiums which were 8 times
the average under a risk rated system of private health
insurance.
The study found that community rating was not
only protecting people in poorer health from the high cost of
risk-rated premiums, it was also redistributing benefits from
low-risk groups to high risk groups. In addition, the study found
that community rating had produced a redistribution of resources
from the wealthier members of health funds to the poorer members,
with members in the lowest income group receiving about three times
the benefits of members in the highest income group. This occurred
both among young and older members.(4)
Concerns have been raised that community rating
is gradually being eroded. These concerns were discussed in the
Industry Commission's report on private health insurance. The
concerns revolve around several factors, including the introduction
and increasing acceptance of front-end deductible policies whereby
contributors elect to accept some risk by paying an excess prior to
any benefits being paid by their health fund. Front-end deductible
policies attract a lower premium than full cover policies. In
addition, exclusionary policies have also been introduced by health
funds. These policies offer a lower premium in return for the
contributor foregoing benefits for treatment in a private hospital
for particular conditions such as cardiac surgery and
obstetrics.
It is argued that both of these types of
policies exclude the elderly and chronically ill who are unable or
unwilling to pay an excess or forego coverage for treatment of
particular conditions in a private hospital. However, it can
equally be argued that these types of policies provide choice for
contributors and may also attract lower risk contributors who may
not otherwise be privately insured. Further concerns involve the
level of discounts being offered by some health funds in a bid to
attract new members from workplaces. It has also been argued that
more recent measures to enable health funds to offer couple and
single parent memberships may work to undermine community rating.
The Bill provides that health funds must adhere to the principles
of community rating when seeking to implement a loyalty bonus
scheme.
No claim bonuses are a commonly used mechanism
in risk rated insurance policies to reward financially members with
none or few insurance claims. While no claim bonuses would be
attractive to healthy people with private health insurance, it is
clear that such a measure would discriminate against people with a
large volume of claims, such as chronically ill people. As such, no
claim bonuses would undermine community rating. No claim bonuses
for private health insurance may also have the effect of
encouraging patients to seek treatment in the public hospital
system to avoid making a claim on their private health insurance
policy (and hence maintain their no claim bonus). Measures in the
Bill make it clear that no claim bonuses may not be offered by
health funds (for example, as part of a loyalty bonus scheme).
Main
Provisions
Schedule
1-Amendment of the National Health Act 1953
Part 1-Amendments relating to discounted
premiums
Items 1, 2 and
3 of this part seek to regulate, or at least, put
some limits on, the existing practices of many private health
insurers. Discounts are currently offered to members whose premiums
are paid directly from their pay or their bank account or where
premiums are paid quarterly, six months or twelve months in
advance. Discounts are also offered to groups-for example, members
of a particular workplace. New subsection 73BA(4)
provides that the Minister may determine the maximum percentage of
discount which may be offered by the health funds to contributors
in each payment class. The level of discounts will be explicitly
linked to the administrative savings gained by the health fund(s).
Existing discount arrangements will be permitted to continue.
New subsection 73BA(5) provides that Ministerial
declarations made under new subsection 73BA(4) are
disallowable instruments.
Part 2-Amendments relating to loyalty bonus
schemes
Part 2 of Schedule 1 proposes that health funds
may offer loyalty bonuses to their contributors. The funds will
have the freedom to decide the type of bonuses to be provided (if
any). Examples of possible loyalty bonuses included a reduced
premium, a higher level of coverage, goods and services, or a cash
payment. The health funds will not have to offer loyalty bonuses to
all their contributors, but must offer the bonuses to all
contributors covered under a given insurance table. The Department
of Health and Aged Care will scrutinise proposals by health funds
for loyalty bonuses.
Item 4 inserts new
subsection 73BA(2A) which proposes to allow the Minister
to issue guidelines relating to loyalty bonus schemes and
new subsection 73BA(2B) which specifies matters
which may be included in the Minister's guidelines. Any guidelines
so issued are disallowable instruments. Schedule 1 of the
National Health Act 1953 is amended by item
5 inserting new paragraph (ma) which will
allow health funds to implement a loyalty bonus scheme.
New paragraph (mb) will require
that health funds uphold the principle of community rating in the
implementation of a loyalty bonus scheme.
Part 3-Amendments relating to waiting
periods
Items in this Part propose that waiting periods
may be extended for certain conditions, ailments or illnesses, as
yet not specified. This measure is aimed at those
illnesses/conditions which health funds have alleged are subject to
so-called 'hit and run' contributors (where contributors join for
the minimum period, undergo the particular procedure(s), often
making claims on the health fund for more than the amount of their
contributions and then drop out of the fund). Notable among these
illnesses/conditions are joint replacements and obstetrics. The
actual extent of 'hit and run' contributors and evidence of their
effect on health funds has not been provided to date by the funds.
Prospective contributors may face increased waiting times prior to
benefits being paid for particular procedures. The definition of
'pre-existing ailment' remains unchanged.
Item 6 inserts
new subsection 73BAA to allow
health funds to waive waiting periods. Item 9
repeals paragraph (j) of Schedule 1 of the Act and replaces it with
new paragraph (j) which removes
the present legislatively prescribed waiting periods, allowing the
new waiting periods to be determined by regulation.
New paragraph (j) is to become
the new common reference point in the Act for waiting periods.
Part 4-Amendments relating to coverage of pharmaceutical
benefits costs
This Part proposes to allow health funds to pay
the co-payment for Pharmaceutical Benefits Scheme (PBS)
pharmaceuticals (currently $20.30 per prescription for general
patients and $3.20 for concessional patients) prescribed as part of
in-hospital treatment but only in those cases where the contributor
is covered by an insurance table offering 100 per cent cover. To an
extent, this measure legalises a current practice of some funds.
Since the advent of 100 per cent hospital cover, some hospitals
have not separately billed the co-payments for PBS prescriptions
and some funds have paid the co-payments on behalf of their
contributors. Other funds have not paid for PBS co-payments, in
accordance with the requirements of the Act. This measure proposes
that health funds will now be able to pay the co-payment for PBS
prescriptions for hospital in-patients where that patient is
covered by an insurance table or policy which offers 100 per cent
hospital cover.
Item 16 repeals existing
section 92B and inserts new section
92B, which reasserts the current general prohibition
against pharmaceutical benefit refund agreements but provides for
an exception where a contributor to health fund has purchased 100
per cent hospital cover. This provision will relate only to those
PBS pharmaceuticals dispensed while the contributor is in
hospital.
The extent to which health funds have paid the
PBS co-payment on behalf of their contributors is not known. While
it is possible that this measure may impose some additional costs
on health funds, this is likely to be small, given that the
co-payments are a small element of the total cost of any hospital
episode. However, the measure will be of benefit to contributors
with 100 per cent cover who will be spared both the cost and
inconvenience of being separately billed for PBS co-payments.
Part 5-Amendments relating to certain procedures
rendered in approved procedures facilities
This Part recognises that due to advances in medical technology,
certain procedures may now be performed safely outside of hospitals
or day hospitals. The amendments propose that these procedures may
be undertaken in an 'approved procedures facility'. Item
17 inserts a new definition into subsection 4(1) of the
Act for an 'approved procedures facility'. Item 20
inserts new section 5C into the
Act which allows the Minister to declare in writing that selected
premises are 'approved procedures facilities'. New
subsection 5C(5) provides that Ministerial determinations
made under new section 5C are disallowable
instruments.
Item 21 inserts
new subsection 73BA(2C) which
allows the Minister to specify which procedures are appropriate to
be undertaken in such 'approved procedures facilities'. Schedule
fees and rebates for these procedures are expected to remain at
their current levels. New subsection 73BA(2D)
provides that Ministerial determinations made under new
subsection 73BA(2C) are disallowable instruments.
For procedures performed in an 'approved
procedures facility', Medicare will provide a rebate of 75 per cent
of the Schedule fee and item 22 inserts
new paragraph (bka) of Schedule 1
of the Act which proposes that health funds will provide a minimum
of a further 25 per cent of the Schedule fee (as is currently the
case for hospital and day hospital procedures) plus any 'facility
benefit' determined by the Minister under new
subsection 73BA(2C), which is inserted by
item 21. The 'facility benefit' is a payment made
in recognition of the extra costs involved in establishing an
'approved procedures facility' and should help to protect privately
insured patients from higher out-of-pocket costs as providers can
be expected to recoup their establishment costs by way of higher
charges for procedures undertaken in 'approved procedures
facilities'. This 'facility benefit' may also make the prospect of
self-insurance less attractive for such procedures. Where a
Medical-Purchaser-Provider-Agreement is in force between the health
fund and a medical practitioner new
paragraph (bkb) of Schedule 1 of the Act proposes
that benefits paid by the fund may exceed 25 per cent of the
Schedule fee. Medical-Purchaser-Provider-Agreements can be
negotiated between individual medical practitioners and health
funds with the aim of reducing or eliminating out-of-pocket costs
for patients with an appropriate level of cover.
Estimating the possible impact of this measure
is difficult because of several unknown factors. It is expected
that procedures provided in such facilities will substitute for
procedures which would otherwise have been provided in a hospital
or day hospital, because only existing items in the Medicare
Benefits Schedule are to be approved for use in these facilities.
It is possible that savings may accrue to health funds because
these procedures will presumably be performed at a lower cost than
would have been the case in a hospital or day hospital. However,
depending on the level at which the proposed 'facility benefit' is
set by the Minister, the overall costs to health funds may end up
being higher, in which case contributors with the appropriate cover
will be likely to face increased premiums. In addition, it is
possible that these facilities may offer greater ease of access for
patients and may result in increased demand for the particular
procedures available in the facilities.
Part 6-Amendments relating to specialist
services
Cabinet agreed on 15 February 1999 to an
amendment to the Bill which will remove Part 6 of Schedule 1 and
all relevant miscellaneous provisions of Schedule 2 of the
Bill.(5)
This Part proposes that a new class of benefit
be created to cover specialist services provided in consulting
rooms. Health funds are currently prohibited from offering benefits
for out-of-hospital medical services and as such this measure
proposes a significant departure from current and past practice.
The Bill makes it clear that this coverage is to be an additional
product which health funds may offer to their contributors. As
such, any extra costs imposed by the measure should be able to be
recovered by way of additional premiums for the increased cover.
Contributors will presumably be free to choose the additional
cover.
Schedule
2-Consequential amendments of various Acts related to the
amendments made by Schedule 1
The National Health Act 1953 (the Act)
provides that health insurance business (ie the provision of health
insurance policies) may only be conducted by registered
organisations. This provision is necessary to protect community
rating. The Act also provides that changes to premiums for health
insurance are treated as changes to health fund rules. Only
amendments to the National Health Act 1953 are dealt with
here.
Item 4 inserts new
section 5AB after section 5A of the National Health
Act 1953. This new section
5AB proposes to ensure that changes to health fund
constitutions, articles or rules that relate to either discounting
and/or loyalty bonus schemes are not to be considered to be changes
related to rates of contributions changes (premium changes).
Item 5 repeals paragraph (a) of
the definition of 'accident and sickness insurance business' in
subsection 67(4). Replacement paragraph (a)
incorporates the schemes referred to in Parts 5 and 6 of Schedule 1
of the Bill which will, for the first time under Medicare, permit
health funds to offer medical insurance for certain out-of-hospital
procedures. The replacement paragraph (a) proposes
to ensure that a person carrying on accident and sickness insurance
may not cover those types of services.
Item 6 repeals paragraph (a) of
the definition of 'health insurance business' in subsection 67 (4).
Replacement paragraph (a) will ensure that a
person carrying on health insurance business may cover the types of
services proposed in Parts 5 and 6 of Schedule 1 of the Bill,
outlined above.
Items 7, 8 and
9 propose further consequential amendments to the
Act. Item 7 repeals subsection 73BDA(6) and
replaces it with new subsection 73BDA(6) which
provides that Medical-Purchaser-Provider-Agreements may now also
relate to services of the kind contained in Parts 5 and 6 of
Schedule 1 of the Bill. Item 8 amends subsection
73BDA(8) to ensure that the existence of a
Medical-Purchaser-Provider-Agreement does not preclude any person
individually contracting for services from any medical
practitioner.
Paragraph (bf) of Schedule 1 of the National
Health Act 1953 requires that all hospital insurance tables
offered by health funds must include benefits for palliative care,
rehabilitation and psychiatric care. Item 9 amends
paragraph (bf) to the extent that new products to be offered by
health funds to cover services envisaged in Parts 5 and 6 of
Schedule 1 of this Bill will not be required to include benefits
for palliative care, rehabilitation and psychiatric care.
Items 6 to 9
will be amended to reflect the decision of Cabinet to withdraw Part
6 of the Bill.
Schedule
3-Amendments relating to monitoring of changes in contribution
rates of organisations
Amendments proposed in Schedule 3 relate to the
politically sensitive area of contribution rates or premiums for
private health insurance. All the amendments in Schedule 3 are made
to the National Health Act 1953 (the Act).
Premiums for particular insurance products are
specified by health funds in health fund rules. Any change to a
premium for a health insurance product is a change to the rules of
the health fund. The Act provides that a change to any health fund
rule is subject to Ministerial scrutiny. The Minister does not have
the power to approve increases in premiums by a health fund, but
does have the power to disallow a change to the health fund's rules
on certain grounds. Amendments in Schedule 3 propose to establish
separate provisions for dealing with rule changes which relate to
changes in premium levels and all other rule changes.
Subsection 78(4) of the Act provides three
grounds which are available to the Minister to disallow a change in
the rules of a health fund - the rule change would or might result
in a breach of the Act or condition of registration; imposes an
unreasonable or inequitable condition upon the health fund's
members; or might, having regard to the advice of the Private
Health Insurance Administration Council (PHIAC), adversely affect
the financial stability of the health fund. In practice, these
grounds have seldom provided a Minister with the ability to
disallow a rule change relating to a change in premium levels.
Item 1 restricts the application of section 78 of
the Act to changes to the rules of health funds other than changes
to premium levels, which are now to be dealt with under new
section 78A.
Item 4 repeals and replaces
subsection 78(4). New subsection 78(4) reiterates
the original three grounds available to the Minister to disallow a
rule change and adds two additional grounds. These additional
grounds allow the Minister firstly, to take account of the state of
the private health insurance industry and, secondly, to consider
the public interest. These additional grounds broaden (at least
potentially) the discretion of the Minister to disallow changes to
rules of health funds.
Item 5 inserts
new section 78A after the
modified section 78. This new section deals with changes to health
fund rules pertaining to changes in premiums paid by contributors.
This new section provides that a shorter notification period of 14
days will apply where a health fund wishes to change the premium of
any of its health insurance products. Mirroring proposals of
new subsection 78(4), new subsection 78A(8)
reiterates the original three grounds available to the Minister to
disallow a rule change relating to changes to premiums and adds two
additional grounds.
As is the case with other rule changes, these
additional grounds allow the Minister first, to take account of the
state of the private health insurance industry and, secondly, to
consider the public interest. These additional grounds broaden (at
least potentially) the discretion of the Minister to disallow
changes to rules of health funds which relate to changes to premium
levels. However, in practice, it is unlikely that these new
provisions will result in a sudden rash of notifications of rule
changes being disallowed, due to the nature of the private health
insurance industry. Health funds are overwhelmingly not-for-profit
organisations which channel any excess revenue to their reserves.
The Act requires health funds to maintain their reserves at a
certain level. Health funds are basically in the position where
their income from contribution rates (premiums) must meet the level
of benefits which the fund is paying to its members. Figures from
PHIAC, the industry watchdog, indicate that while contribution
income of health funds increased by some 213 per cent during the
period 1984-85 to 1997-98, benefits payable by the health funds
increased by 235 per cent over the same period.(6)
Item 5 will commence on a day
to be proclaimed or 6 months and one day from Royal Assent.
Item 6 inserts
new subsection 105AB(5A) after
subsection 105AB(5) of the Act. This new subsection will allow for
review by the Administrative Appeals Tribunal of Ministerial
decisions made under new subsection 78A(8).
Following the commencement of items 8 to
15 which transfer certain responsibilities from
the Minister to PHIAC, item 14 repeals new
subsection 105AB(5A) and replaces it with a new subsection
permitting review by the Administrative Appeals Tribunal of any
decision by PHIAC to disallow a rule change relating to changes to
premiums. This subsection will become redundant following the
commencement of item 16 which removes from PHIAC
the responsibility of monitoring changes to health fund premiums.
Item 16 will commence no later than 4 years after
the commencement of item 6.
Note that in the Explanatory Memorandum of the
Bill, item 6 of Schedule 3 wrongly refers to the
insertion of new subsection 105(5A) after existing subsection
105(5). The Explanatory Memorandum should refer to the insertion of
new subsection 105AB(5A) after existing subsection
105AB(5). The error is repeated in item 14 of the
Explanatory Memorandum. In addition, item 14 of
Schedule 3 of the Bill wrongly refers to subsection (8) of section
78. The correct reference is subsection (8) of section 78A.
Items 8 to 15
transfer functions relating to the monitoring of changes to health
fund rules, including changes to premiums, from the Minister and
the Secretary to PHIAC. Item 17 removes this power
from PHIAC. The Bill provides that item 17 will
commence no later than 2 years after the commencement of
items 8 to 15.
Concluding Comments
Changes to the private health insurance
arrangements proposed in the Health Legislation Amendment Bill
(No.4) 1998 are arguably far reaching, particularly when viewed
against a background of the mainly incremental changes since
Medicare began in 1984. For example, the transfer, within 2 years,
from the Minister to PHIAC and the subsequent removal, within a
further 2 years, of any monitoring of changes to premiums will
enable the Government to deal with this politically sensitive issue
at arms length.
The reintroduction (although for the first time
under Medicare) of medical insurance for consultations by
specialists is another significant proposed change. This change may
prompt some meaningful discussions between medical specialists and
health funds because these new arrangements will only be possible
where a Medical-Purchaser-Provider-Agreement is in place between
the practitioner and the health fund. These Agreements aim to
reduce or eliminate out-of-pocket costs for health fund members
with the appropriate level of cover but few agreements are in
place, mainly because of the opposition of specialists. The
Australian Medical Association is reportedly concerned by this
proposal in particular, arguing that 'allowing specialist
consultations to be covered by private health insurance would
change Medicare irrevocably'.(7) Indeed, general practitioners,
already concerned about their incomes and their role in the health
system, may regard this measure as an impetus to argue that some or
all of their services should also be covered by private health
insurance.
[As discussed earlier, Cabinet has
agreed to an amendment which will remove the provisions of Part 6
of Schedule 1 of the Bill.]
Enabling certain procedures which are at present
restricted to hospitals and day hospitals to be conducted in the
proposed 'approved procedures facilities' may result in these
procedures being offered at lower cost. However, if the number of
services does not increase it may be expected that some financial
impact will be felt by any hospitals or, more particularly, day
hospitals, which presently provide a large number of these
procedures. The degree of any impact will depend on the actual
procedures which the Minister determines as suitable to be
performed in these facilities. It is also possible that this
measure may actually undermine the attractiveness of private health
insurance because it may encourage people to self insure. For
example, a far higher proportion of patients attending private day
hospitals are not covered by private health insurance (ie they
self-insure) compared to patients attending private acute and
psychiatric hospitals.(8) If the costs to patients of procedures
performed in 'approved procedures facilities' are lower than the
costs of the same procedures performed in day hospitals it can be
argued that patients attending these facilities may have a
correspondingly greater propensity to self-insure.
Nevertheless, this measure does recognise that
changes in technology have enabled certain procedures to be
conducted out of the hospital setting and it should also provide
patients with greater choice and flexibility. Likewise, measures
proposing to permit health funds to offer loyalty bonuses and to
pay the pharmaceutical co-payment for certain contributors in
hospital are likely to welcomed by current and prospective
contributors to private health insurance.
Endnotes
-
- Private Health Insurance Administration Council, Annual
Report 1997-98: 88 and Coverage of
hospital insurance tables offered by registered health benefits
organisations, December Quarter
1998, February 1999.
- Industry Commission, Private Health Insurance, report
no. 57, Industry Commission, Canberra,
1997.
- Minister for Health and Family Services, 'Reforms to improve
efficiency and value of private
health insurance', Media Release, 22 September 1998.
- Deborah Schofield, Private Health Insurance and Community
Rating: who has benefited?,
Australian Institute of Health and Welfare, Canberra, 1997: 19
- Extract of a letter from Dr Wooldridge to Chair of Senate
Community Affairs Committee, read
out at the commencement of the Committee's public hearing on the
Bill, 17 February 1999.
- Private Health Insurance Administration Council, op
cit: 9
- M Downey, 'Medicare in peril: doctors', Sydney Morning
Herald, 12 February 1999.
- Australian Bureau of Statistics, Private Hospitals
Australia 1994-95, (ABS Cat No 4390): 22.
Jennifer Norberry & Paul Mackey
3 March 1999
Bills Digest Service
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ISSN 1328-8091
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