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•1/29/2013
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Health Care Compliance Association Regional Annual Conference
LONG TERM CARE – HOME HEALTH AND HOSPICE – COMPLIANCE AND REGULATORY ISSUES
Presented by: Connie A. Raffa, J.D., [email protected] 212-484-3926 Fax 212-484-3990
Wilma Acosta, RN, BS, CHC, [email protected] 813-503-6491
Washington, DC | New York, NY | Los Angeles, CA
February 8, 2013
Orlando, FL
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Outline
I. Overview of 2013 Audit Focus. Who Is Watching? Where Are They Getting Their Information? What Roles Do These Entities Play?
II. Highlight of Key Audit Issues for Home Health Agencies and Hospices.
III. Compliance, Quality and Internal Audit Strategies.
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I. Government Agencies
• DOJ – U.S. Attorney’s Office Civil & Criminal• Office of the Inspector General (OIG)• Federal Bureau of Investigation (FBI)• State Attorney General’s Office
• State Medicaid Fraud Control Units
• State Office of the Medicaid Inspector General (OMIG)
• Medicaid RACs• Medicaid Integrity Contractors
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Government Agencies (cont’d)
• Medicare Contractors• Quality Improvement Organizations• Program Integrity Units & Fiscal Audit• Medicare Administrative Contractor• Recovery Audit Contractors (RAC)• Zone Program Integrity Contractors (ZPIC)
(Program Safeguard Contractors (PSC))• Medicare Secondary Payer Recovery Contractors• Comprehensive Error Rate Testing Program
(CERT)
• State Survey and Certification Agencies
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ZPIC – SafeGuard Services LLC - Zone 7 FL
Role is to prevent, detect and deter fraud, waste and abuse by:1. Performing Data Analysis and Data Mining
2. Conducting Medical Reviews
3. Investigating Allegations of Fraud and Abuse from Beneficiaries, Providers, CMS, etc.
4. Recommending Recovery of Federal Funds through Administrative Actions, Deny/Suspend Payments
5. Referring Cases to Law Enforcement, DOJ, OIG, MFCU
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What is Fraud, Waste and Abuse?• Fraud is defined as making false statements or
representations of material facts in order to obtain some benefit or payment for which no entitlement would otherwise exist - includes obtaining a benefit through intentional misrepresentation or concealment of material facts.
• Waste includes incurring unnecessary costs as a result of deficient management, practices, or controls.
• Abuse describes practices that, either directly or indirectly, result in unnecessary costs to the Medicare program. Many times abuse appears quite similar to fraud except that it is not possible to establish that abusive acts were committed knowingly, willfully, and intentionally -includes excessively or improperly using government resources.
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Recovery Audit Contractors – Connolly FL• Tax Relief & Health Care Act of 2006, § 302.• HHS contracts with Recovery Audit Contractors.• Purpose: Identify and recoup overpayments
and identify underpayments of post-paymentfee-for-service, Part A & B claims.
• Four RACs and Validator RAC.• Websites:
• www.dcsrac.com• http://racb.cgi.com• www.connollyhealthcare.com/RAC• http://racinfo.healthdatainsights.com• www.provider-resources.com
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RAC Audit and Recovery Periods §1893(h)(4)
• RACs audit a percentage of claims based on volume criteria specific to provider/supplier type
• RACs can audit claims paid by Part A & B retroactive 3 years from the date the claim was paid
• RAC Data Warehouse - CMS claims data
• RAC paid contingency fee 9-12.5% of overpayment
• Fee with interest returned if provider wins on appeal
• Statistical sampling and extrapolate
• HHS reports to Congress
• MLN 6183 9/29/08
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Automated Review ProcessAutomated Review Process:• RAC reviews claims data – “data mining”.• Overpayment determination made without contacting
provider.• No review of medical record because
a) there is a clear policy that is the basis for the denial. “Clear Policy” means a statute, regulation, National Coverage Determinations (NCD), Local Coverage Determinations (LCD) or CMS Manual, that specifies the circumstances under which payment for a service will ALWAYS be denied;
b) the denial is based on a medically unbelievable service;c) failure to respond to medical record request letter within 45-
day deadline, plus 10 calendar days mail time to submit.• Claim Status Website.• Detail Review Result Letter.
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Complex Review Process
• Review of the medical chart.
• Send hard copy, CD or DVD.
• RNs or therapists must review medical record for coverage and medical necessity determinations.
• Certified Coders must review medical records for coding determinations.
• RACs have Medical Directors.
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Medicaid RACS
• Effective January 1, 2012.• Review claims up to 3 years from date claim was
filed (unless extension is received via SPA)• Subject matter is state dependent• Must coordinate with DOJ, FBI, OIG, MFCU• Must afford appeal rights (State dependent).• Paid based on contingency fee unless State law
prohibits (must request exception from CMS).• Medicaid RAC fees must be returned if
overpayments are identified at any level of appeal.
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Medicaid Integrity Contractors (MICs) of CMS
There are three types of MICs:• Review
• Audit
• Education
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Review MIC
MICs review paid claims to ensure that:• Services were provided and properly documented;• Services were billed properly, using correct and
appropriate procedure codes;• Claims submitted were for covered services; and • Claims were paid according to Federal and State
law, regulations and policies.• Analyze Medicaid claims data to identify high-risk
areas and potential vulnerabilities.• Provide leads to the Audit MICs.• Use data-driven approach to ensure
focus on providers with truly aberrant billing practices.
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Audit MICs – Health Integrity, LLC - FL
• Conduct both field and desk post-payment audits.
• Fee-for-service, cost report and managed care audits.
• The audits identify overpayments and the individual State collects overpayments and adjudicates provider appeals.
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Education MICs
• Use findings from Audit and Review MICs to identify areas for education.
• Work closely with Medicaid partners & stakeholders to provide education and training.
• Develop training materials, awareness campaigns and conduct provider training.
• Highlight value of education in preventing Medicaid fraud, waste, and abuse.
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Current MICs
• Audit• Booz Allen Hamilton• Fox & Associates• IPRO• Health Systems Management• Health Integrity LLC – (FL)
• Review• AdvanceMed• ACS Healthcare• Thomson Reuters• IMS Gov’t Solutions
• Education• Information Experts• Strategic Health Solutions
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II. Highlights of Key Audit Issues for Home Health Agencies and Hospice
WHAT ARE THE ISSUES CURRENTLY BEING REVIEWED?
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• The beneficiary must be confined to the home.• Under the care of a physician while the home
health services are furnished. • In need of skilled services (Nursing, PT, ST or
continuing OT).• On a part-time or intermittent basis (Maximum 8
hours/day totaling 28 and up to 35 hours per week).
• A plan of care has been established and is periodically reviewed by the patient’s physician.
Medicare Home Health Coverage Criteria
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Home Health Issues Being Audited• Eligibility Criteria (homebound, skilled service
part-time or intermittent basis, care of physician)
• Plan of Care (verbal and written orders must be signed and dated by physician before billing)
• Face-to-Face (completed and timely)
• Lack of valid orders; no stamped signatures
• Physical Therapy Visits –LUPA plus 1 & 13/19
• Documentation does not support medical necessity
• Duplicate billing by 2 providers for same date
• Excluded individuals and providers
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OIG Home Health Risk Areas
The OIG has identified 31 Risk Areas for home health agencies - footnotes
Department of Health & Human Services Office of the Inspector General Compliance Program Guidance for Home Health Agencies – 8/7/98
http://oig.hhs.gov/authorities/docs/cpghome.pdf
List of 31 Risks
OIG Special Fraud Alert HH
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OIG 2013 Home Health Work Plan
● OIG will review compliance with the Home Health Face-to-Face requirement.
● OIG will determine extent to which HHAs are complying with State requirements of criminal background checks of employees.
● OIG will review the timeliness of HHA recertification and complaint surveys conducted by State Survey Agencies and Accreditation Organizations, their outcomes and follow up to complaints.
● OIG will review Outcome and Assessment Information Set (OASIS) data to identify payments for episodes for which OASIS data were not submitted or the billing codes on the claims are inconsistent with OASIS data.
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OIG 2013 Home Health Work Plan (cont’d)
● OIG will also identify the number of States that violate Federal regulations by inappropriately restricting eligibility for home health services to homebound recipients.
● OIG will review activities of CMS contractors to identify and prevent improper home health payments.
● OIG will review compliance with various aspects of PPS.
● OIG will review cost report data to analyze HHA revenue and expense trends under the home health PPS to determine whether the payment methodology should be adjusted.
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1. Services related to terminal diagnosis provided during a hospice period that are billed by HHA.
2. HHA Medical record review for coverage criteria and medical necessity.
3. Request for Anticipated Payment (RAP) for home health episode w/o final claim billed.
4. Incorrect billing of HH Partial Episode Payment claim with discharge status and another HH claim was not billed w/n 60 days of PEP.
5. DME bill for medical supplies provided to HH patient. HHA Prospective Payment System includes RN, PT, OT, ST, MSW, routine and non-medical supplies, & aides, but not DME.
Medicare RAC Connolly - Home Health Issues
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Hospice Issues Audited - “Low Hanging Fruit”• Proper election• Timely certifications (verbal, written and signed
before billing)• Narratives• Face-to-Face (completed and timely)• Lack of attending physician for initial certification• Lack of signatures/stamped signatures• Duplicate billing (two providers for same date of
service, i.e., hospice and hospital.)• Physician Billing• Medicare Part D billing
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1. Lack of documentation in the record for hospice eligibility.
2. Non-Cancer Length of Stay (NCLOS).
3. Hospice services provided in the nursing home.
4. Lack of documentation in the record for level of hospice care provided.
5. Use of continuous care in a skilled nursing facility. MLN JA 6778
Complex Audit Hospice Issues
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OIG Hospice Risk Areas
The OIG has identified 28 risk areas for hospices. These risk areas are explained in great detail in the footnotes to the OIG Model Compliance Program Guidelines for Hospices issued 1999 and found at:www.oig.hhs.gov/authorities/docs/hospicx.pdfList of 28 Risk AreasAdvisory Bulletin OnHospice Benefits
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OIG 2012 Hospice Work Plan
● OIG will review claims for inpatient stays where the beneficiary was transferred to hospice care – OIG will review the relationship (financial or common ownership) between the acute care hospitals and hospices.
● OIG will review hospice marketing materials and practices and financial relationships between hospices and nursing facilities.
● OIG will review the appropriateness of the use of GIP.● OIG will review drug claims under Part D.● OIG will review Medicaid payments to determine if
the hospice services complied with the Federal reimbursement requirements.
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OIG 2013 Hospice Work Plan
• OIG will review hospices’ marketing materials and practices and their financial relationships with nursing facilities.
• In a recent report, OIG found that 82% of hospice claims for beneficiaries in nursing facilities did not meet Medicare coverage requirements.
• OIG will focus their review on hospices with a high percentage of their beneficiaries in nursing facilities.
• OIG will review the use of hospice general inpatient care in 2011, and will also assess the appropriateness of hospices’ general inpatient care claims.
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Medicare RAC Connolly – Hospice Issues
1. Billing for hospice related services for a terminal diagnosis provided to a hospice patient during a hospice period by:a. Home Health Agencyb. Outpatient Hospital billingc. Inpatient Hospitald. DME Supplier
2. Physician who has an employment, contract or volunteer relationship with a hospice billing Medicare Part B for physician services provided to a hospice patient.
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Hospice - Nursing Home RelationshipsTwo independent regulatory schemes with different goals:
COPs for Hospice: 42 C.F.R. Part 418 –“Palliative care is patient and family centered care that optimizes quality of life by anticipating, preventing, and treating suffering…[by] addressing physical, intellectual, emotional, social, and spiritual needs and to facilitate patient autonomy, access to information and choice.”
COPs for NH: 42 C.F.R. Part 483 –“highest practicable physical, mental and psychosocial well-being”
• Two reimbursement schemes. Room v Board issue.• Patient is both a Nursing Home (NH) Resident and a
Hospice Patient. Resident Assessment Instrument Minimum Data Set (RAI/MDS).
• NH Medical Director vs. Hospice Medical Director.• Hospice Election Issue.
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OIG – Hospice/Nursing Home Issues
1. 1998 OIG Special Fraud Alert – “Fraud and Abuses In Nursing Home Arrangements With Hospice”
2. Advisory Bulletin on Hospice Benefits – 11/2/05
3. “Special Advisory Bulletin Regarding Provision of Gifts and Other Inducements to Medicare Beneficiaries,” 8/30/02
4. OIG Advisory Opinions 00-03; 00-07; 01-19;03-04; 08-07
5. Medicare Hospice Care ForBeneficiaries in Nursing Facilities:Compliance with Medicare Coverage Requirements, 2009
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OIG Reports – Hospice/Nursing Home Issues
Medicare Hospices that Focus on Nursing Facility Residents OEI-02-10-00070 7/11
Questionable Physician Hospice Billing OEI-02-06-00224 9/10
Hospice NF Medicare Coverage Rules OEI-02-06-00221 9/09
Hospice Services to NF Residents OEI-02-06-00223 9/09
Hospice Beneficiaries Use of Respite Care OEI-02-06-00222 3/08
Beneficiaries in NH vs. Other Setting OEI-02-06-00220 12/07
Hospice Beneficiaries Services and Eligibility OEI-04-93-00270 4/98
Hospice and NH Contractual Relationships OEI-05-95-00251 11/97
Validity of Medicare Hospice Enrollments A-05-96-00023 11/97
Hospice Patients in Nursing Homes OEI-05-95-00250 9/97
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OIG Hospice Nursing Home Concerns
• Both parties have to provide the services for which they are responsible, and being paid by Medicare.
• No payments or in-kind services are given in return for referrals.
• Problem-solving mechanisms built into contract required by 42 CFR § 418.112:a. Case conferences between Hospice and NHb. Participation in Hospice IDG as requestedc. Appointment of Liaisonsd. Hospice 24-Hour On-Call System
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Deliberate ignorance is not a defense!
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III. Compliance
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What the Government Expects
A provider has a duty to have knowledge of the statutes, regulations and guidelines regarding coverage for Medicare services including:
a. reasonable and necessary medical services furnished to beneficiaries. 42 U.S.C. §1395y(a)(1)(A)
b. economical medical services and then, only when, and to the extent medically necessary. 42 U.S.C. § 1320c-5(a)(1)
c. clinical record must be “legible, clear, complete, and appropriately authenticated and dated…” in accordance with accepted professional standards.
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Framework of Compliance Programs7 Main Elements 1. Written Standards/Code of Conduct and policies2. Oversight - Compliance Officer and Committee3. Effective Education and Training 4. Effective lines of communication – internally and externally5. Enforce standards through well publicized disciplinary
guidelines6. Internal auditing and monitoring7. Respond, Correct and Prevent
There is also “implied” 8th element, which calls for periodic reassessment and review of the effectiveness of the compliance program and organizational risk.*
*01‐27‐2005 Supplemental Compliance Program Guidance for Hospitals Fed Register Section III, pgs 4874‐4876 (PDF) [Original Compliance Program Guidance for Hospitals (PDF) (February 23, 1998)]
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1. Written Standards/Code of Conduct and Policies
Code of Business Ethics and Conduct:• Commitment to compliance with Federal and State
health care program requirements.(not just billing)• Expectation that associates will comply.• Right and requirement to report to Compliance Officer
or Committee suspected violations of any Federal/State law or regulation or company policies.
• Commitment to non-retaliation..• Confidentiality for the disclosing employee
Consider:Compliance as an Element of Employee Performance Plan Place on dashboard a measurement/metric
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1. Written Standards/Code of Conduct and Policies
Written Policies and Procedures:• Comprehensive and comprehensible• Distributed /available to all employees• Frequently updated - and address OIG Risk areas i.e. ; Eligibility, Anti-Kickback, Medical Necessity,
Plans of Care, Stark, Investigation Process
Records and Documentation:• Medical Record and Billing Process/Records• Compliance Program Documentation:• Training, Hotline calls, corrective action plans,
self-disclosures, audit and monitoring results, program modifications
• Logs maintain current – available for gov’t
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2. Oversight - Compliance Officer and CommitteeIntegrity, Independence, Authority
• Oversees/monitors the compliance program• Report in to Governing Body, Board of Directors, CEO and
Compliance Committee• Updates changes in requirements• Develops and participates in training• Monitors Independent Contractors• OIG/ZPIC/RAC/MIC checks• Investigations – aware to participates
Compliance Committee:• Senior management, all departments, including quality and risk• Assist and support the compliance officer• Analyze and review legal requirements• Review/revise existing policy• Determine strategy• Monitor internal and external reviews
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3. Effective Education and Training
• All Company Associates: • corporate officers, senior management, nurses, other
clinical staff, administrative, marketing and financial services
• Annual, mandatory, post-tests & employee attestations• Business Ethics and Compliance• HIPAA & Privacy and IT Security• Regulations, statutes and COP’s – Program Integrity• Eligibility and Coverage Requirements• Billing Requirements• Patient rights• Duty to comply and report misconduct• Marketing• Quality and Risk Areas as per OIG
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4. Effective lines of communication – internally and externally
Access to the Compliance Officer• Unfettered access to the compliance officer• Non-retaliation• Confidential and anonymous (maintain – important
for credibility and sustainable mature compliance program)
Hotline and Other forms of Communication• Confidential Hotline – phone or on intranet on-line• E-mail, suggestion box, newsletters, etc.,
can also be used Confidential and anonymous Readily available Distributed to all
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5. Enforce Standards through Well-Publicized Disciplinary Guidelines
Effective Disciplinary Policies and Actions• Well disseminated• Fair and equitable• Enforced consistently • Monitor the enforcement actions
New Hire/Terminated Employee and Policies• Background checks-include fingerprints• OIG/GSA Exclusion Lists• State Medicaid exclusion lists• Boards of medicine, pharmacy, nursing and/or
other licensing/certification boards• Exit surveys, calls, in-person interviews, etc….
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6. Auditing and MonitoringPre-bill Audits and Internal Reviews• Consider development of a Standard Audit Plan (SAP)• Perform SAP quarterly – results reported to Compliance
Committee Suggested Topics: Election, Admission, LOS,
Certifications and Plan of Care Audits, Forged Signatures, LUPA, RAP and Face-2-Face
• Investigation of Hotline calls and other complaints Appropriate follow-up to calls: log, investigations, reports Patient/family complaints
• Collate data – review trends – provide feedback• Act on findings –
management responses with plan of correction, evaluate the responses, circle back with owners to validate implementation and effectiveness of plan of corrections.
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7. Respond, Correct and Prevent
• Report misconduct within a reasonable period Develop criteria for “What a Reasonable Period is” specifically
for the “60 Day” repayment window Demonstrates good faith Provide evidence of the violation and estimate of the
overpayment that resulted from it Return the overpayment (See return of overpayments) Failure to do so might be construed as a deliberate attempt to
conceal findings from the government
• Demand Corrective Action Plan(s) (“CAP”) Implement corrections to practices and follow-through on
required disciplinary actions Evaluate effectiveness of corrective actions – close the loop – Partner with Quality and Risk to assist with Performance
Improvement Initiatives and develop quality indicators for measuring effectiveness of CAPs
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What To Do When The Government Comes Knocking
TIPS FOR PROVIDERS WHEN RESPONDING
TO AN AUDIT REQUEST
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How To Respond To An Audit Request or Surprise VisitAudit Requests:• Government has your correct mailing address – mail delay
is not an excuse for an untimely response.• Designate one person to whom all audit letters will be given
when received by the provider and open immediately. • Designate one person to coordinate a response.
Surprise Visit• If representatives of a government entity shows up at your
door, take their cards and immediately contact the individual designated for such matters. – have default person identified in the absence of designated person
• Work with internal health care counsel and contact external counsel for guidance
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How To Respond To An Audit Request (cont’d)
• Make sure that all information requested is gathered If the document is missing, find it. If the document does not exist, DO NOT CREATE IT.
• Number each page of all documentation sent to the government (bates stamp).
• Respond by the deadline noted in the audit request.
• Send the response to the correct entity at the correct address.
• Timely respond to any requests for additional information.
• Submit a road map (checklist) or clinical chronology of medical record.
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Two Steps Ahead
If You’re Not Two Steps Ahead...
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Thank You
Questions?
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NYC/713535.1