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OMG. . .The OIG is at it Again

 

Published:

February 28, 2024
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Five years ago, the U.S. Department of Health and Human Services Office of Inspector General (OIG) initiated audits of 13 hospices and published its findings in 13 separate reports. It appears that the OIG is at it again, as multiple hospices recently have received “engagement letters” from the OIG with directions to produce medical records for 100 randomly selected claims. In this episode, Husch Blackwell’s Meg Pekarske and Bryan Nowicki discuss these OIG audits, strategies for responding, and their implications for the hospice community.

Read the Transcript

This transcript has been auto-generated and may contain technological errors.

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Hello and welcome to Hospice Insights

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The Law and Beyond where we connect you to

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what matters in the everchanging world

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of hospice and paliative care.

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OMG the OIG is at it Again Bryan great

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title for this podcast I love it yeah

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I'm I you know I I have a a a uh maybe

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another career in marketing or or

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promotional stuff I enjoy these so yes

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yes well it's a good one it's catchy and

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this is really just unfortunate news and

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what we're talking about here aren't

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like the work plan audits that are

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oneoff claim you know polls that that

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hospices get these are the provider

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specific audits we've talked about on

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this podcast before Bryan and I think

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those have you know been extrapolated

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there many millions of dollars they're

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public it's just a lot of concern here

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and the reason why we're doing another

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podcast is we thought that they were

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stopping at 13 but now we have clients

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more recently that have gotten the same

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kind of audit so there's more than 13

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hospices that are going to get this so

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we wanted to get the word out to people

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because these are really serious yeah I

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mean over if you look back at the OIG's

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report over the years you know every so

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often they would uh audit a hospice and

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you can tell that because they make

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their reports public they'll they'll

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publish them on their website and then

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about four or five years ago uh it was a

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whole group of hospices which turned out

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to be 13 and uh they all started around

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the same time and I I think uh there are

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some that are still going through the

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appeal process and I think we thought or

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Our Hope was that okay they're doing

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this group of 13 maybe then they'll go

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back to just the occasional oneof every

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other year or so uh but in the last

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couple of months we've learned that now

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there are three hospices who are getting

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this kind of treatment all in quick

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succession so you know how many more are

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going to be in is this a new group of 13

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or is it a bigger group a smaller group

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that remains to be seen but it looks

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like they're going after hospices again

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in a coordinated way yeah and the reason

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why it's so high stakes is extrapolation

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and we've talked on the podcast a lot

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about

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extrapolation um

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oftentimes it was in upic audits which

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upix can still extrapolate but we're not

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seeing as much of that but these OIG

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audits they're always extrapolating

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their findings and because the universe

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is everything you build for two years if

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your error rate is 50% which when you

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look look at the reports of the 13

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hospices from before the error rates

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were around that probably on average

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yeah yeah on average I think the low

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might have been uh below 20% the high

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was over 80% a lot of them fell within

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that 30 to 40 to you know 60% range just

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look at your revenue for two years if if

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your revenue for two years was 50

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million uh and you got a 50% error rate

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you're going to get a report that says

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you owe half of that 25 million so you

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it's easy to do that math but that's why

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these are so consequential these are Big

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deals in terms of dollar amount but also

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again these are published for the world

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to see and also for decision makers and

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policy makers to react to as well yeah

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well it just I can't say enough how

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incredibly punitive this is

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and you know I I don't know how they're

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pulling their sampling but you know this

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isn't you know a list of the top 10

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criminals in hospice that they're you

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know auditing when you look at that that

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list I mean these are very reputable

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long-standing hospices that that you're

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seeing and it's just very very very

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troubling and I won't go too far onto my

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Soap Box about you know we have

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statutory waiver of liability because

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all of these audits are really focused

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on eligibility of patients for either

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level of care or you know overall

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prognosis and it just it's just very

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very troubling and I think in terms of

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what to do I mean this is sort of an all

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Hands-On deck

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situation where there's a lot of

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formality in dealing with the OIG and

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they follow a process and you know

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oftentimes we've been able to get

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rolling Productions because it's a lot

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of Records because it's going to be 100

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100 patients is what their sample is so

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pulling 100 records and they're doing it

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just for a particular month but

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nonetheless that's a ton of Records to

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produce and then they also typically ask

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for other additional records policies

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and procedures and some other things

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right Brian yeah that's right it's you

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know the the claims are really a a

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burdensome I mean it's a voluminous

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number of claims to gather the documents

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relating to 100 patients and 100 claims

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so the first uh T you know the last

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round of these when there were 13 we

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were representing about half of the

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hospices who were involved with those

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developed a good relationship with the

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OIG where we could uh have them

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accommodate us giving us reasonable

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amounts of time to produce records but

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yeah beyond that they want uh policies

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and employee lists and incorporation

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documents you know they they want to get

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a good sense of the background of the

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hospice last time around none of those

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non-patient records really played a

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large role in the ultimate report that

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was issued but it is clear they're

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looking at those uh and you'll see if

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you look at those older reports when

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they identify an overpayment they're

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usually attributing the cause of the

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overpayment to policies that were

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ineffective uh so they don't go into

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much detail about what was wrong with

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the policies and we asked so we we tried

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to get that information from them but

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really the focus is on those patients

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they'll review them for eligibility

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six-month prognosis uh and kind of

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arrive at their conclusion there was uh

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uh one of those OIG efforts was focused

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on level of care continuous home care

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and

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Gip uh so far we haven't seen that kind

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of an audit in this new round appears to

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be focused more on just uh do they have

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a terminal prognosis or not do the

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medical records support that yeah I I

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can't say how catastrophic these audits

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are when you look at the dollar numbers

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because if you're a large provider I

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mean those dollar numbers can you know

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end up being 50 million 60 million

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dollars I mean there's not many people

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that can withstand that type of

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repayment and stay in business so yeah

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um obviously you have appeal rights and

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we've helped people through that and

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lowering the error rate and I think

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importantly the whole statistical side

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of these cases is important and getting

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a statistician involved you know very

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early on I mean we've won statistical

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cases um but oftentimes if you win on

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the statistics the government's going to

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challenge that and and appeal that and

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try to get that overturned so yeah it's

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a different uh you know there's been a

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number of develop M since the last round

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of these so and and I don't know if this

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is a silver lining but it is a reason to

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continue to have hope is that we were

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fairly successful and are being

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successful in the appeals of these

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bringing that error rate down reducing

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the kind of sticker shock of the sticker

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shock effect on that report and the

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large overpayment but it really takes

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that coordinated efforts you know having

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kind of councel statisticians expert

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Physicians one of the differences now is

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that there are a number of uh court

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cases that are making their way through

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federal courts challenging the

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statistical approach for these Audits

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and other kinds of CMS audits there are

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court cases challenging the way that U

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these reviewers are reviewing medical

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records we know that because because

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we're behind a number of those lawsuits

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we've kind of developed strategies and

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and have filed those a number of

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lawsuits across the country to try to

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push back which as far as we can tell is

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the first time people are pushing back

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at the federal court level against

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hospice audits that involve these kinds

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of

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extrapolations and where the medical

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review really second guesses in a way

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that we think is unfair the uh decisions

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and clinical Judgment of the certifying

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Physicians so I think that hopefully

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those court that Court activity will

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also temper the kind of consequences

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that these OIG reports otherwise are

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going to have yeah well it is going to

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be interesting to see if we can get some

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positive results from some of that

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Federal litigation which is happening

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all across the country so in many

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jurisdictions uh and so we'll see but I

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mean this money comes due I mean you can

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hold to recruitment during the first two

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levels of appeal but after that you have

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a need to have a payment plan or pay it

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so yeah I mean that's one of the one of

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the problems that hospices have faced uh

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and it's kind of facing it on steroids

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with these OIG audits is before you're

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done with the appeal process the

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government gets its money and so uh can

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a can a hospice survive in order to

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appeal survive to appeal the results or

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not and the system is set up to make it

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to allow the government to take those

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funds before you're done with the appeal

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process so yeah I mean there's a lot of

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nuances and and and things that need to

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be addressed the extended repayment

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schedule and how does that coordinate

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with other kinds of advocacy through the

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appeal process and uh any kind of

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negotiations you can open up and there's

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also the public relations aspect the

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last time around uh we worked with our

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clients to be ready for media coverage

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of this and thankfully it wasn't too

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terribly significant I think Meg you and

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I had thought you know after they're

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done with these 13 reports they're going

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to bundle them all together and issue a

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huge press release and really impune the

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hospice Community thankfully that did

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not happen uh but but you never know

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times are different and I don't know if

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there's a change of foot but you know I

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think it's important to look at all

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aspects all implications resulting from

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these Audits and make sure you're ready

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for them well and we have all hands on

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deck I mean we're talking about our

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clients having that I mean we are too in

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terms of we're working on so many of

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these unfortunately and you know have

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yeah a lot of people devoting lots of

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their time to fighting the good fight

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here it's just sad I I I maybe we just

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need to stop talking about it Brian

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because I just there is no this is just

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I don't know what's going on from a

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policy perspective because this is this

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is not I think the way forward in terms

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of you know having a positive impact on

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patients lives and you know the cost

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savings that hospice brings to I mean at

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some point there's just going to be a

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chilling effect with all of these audits

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of there's just too much liability yeah

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um and create access to care issues and

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a bunch of other stuff right I mean you

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CMS does good things you know when

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they're looking at targeting the true

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fraudsters out there f focusing on the

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the mill of Provider numbers that are

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kind of acquired to resell that you know

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good let's get the good let's get the

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bad guys with that but but this kind of

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effort uh and really a lot of the audits

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in general they're casting such a wide

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net that they're they're getting the

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good guys snared in these kinds of

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audits unfortunately because I think it

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does create access to care issues and

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just a huge disincentive for hospices to

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take any

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chances on those patients especially

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those who might live longer than six

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months unexpectedly I it's a way to

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avoid or mitigate risk is just to start

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discharging them and that's not what

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hospice is about and it's a it would be

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a shame if the regulatory enforcement

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environment put the hospices in the

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position of having to make that terrible

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Choice which is so inconsistent with

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what Congress did when it set up the

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benefit yeah it is it is I don't know

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how we got here but it it just is it's

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not uh the right track and I know as an

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industry all of the national

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associations have had meetings with um

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the center for program Integrity which

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that's not OIG um but and I know there's

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been communications with OIG as well but

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those are Communications I mean I don't

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know CMS very quickly

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obviously um with all the changes to

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deal with as you said the number Mill

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and some of the craziness going on in

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those four states but so that was that

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was pretty miraculous but here I I don't

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know those larger

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00:14:09,160 --> 00:14:13,279
conversations you know I think it's good

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that we're having them I don't know if

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we're going to see an immediate you know

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change in the audit activity and these

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audits in particular but I wish I had

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like a okay

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Brian there's a happy note here yeah we

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need that local news personal interest

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story at the end of these podcast just

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00:14:32,079 --> 00:14:37,519
on the lighter side but yeah well I have

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my new dog Wall-E that I could bring on

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00:14:37,519 --> 00:14:43,800
all right yeah so he could we all need

335
00:14:40,399 --> 00:14:46,440
some puppy time I think yeah exactly so

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but unfortunately no one can see w-e

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right now but so well this is really

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important and I think it's important for

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us to get the word out because we have

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had clients who got these and I think

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didn't realize how serious they were and

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what were the potential ramifications

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because I think when you get this you

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don't necessarily know they're going to

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00:15:04,399 --> 00:15:10,519
extrapolate and do all that stuff and so

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00:15:07,440 --> 00:15:13,120
um yeah it might it might come it might

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00:15:10,519 --> 00:15:14,959
begin with an email from someone at the

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00:15:13,120 --> 00:15:18,000
OIG saying hey I want to send you a

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00:15:14,959 --> 00:15:19,800
letter who should I send it to and and

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00:15:18,000 --> 00:15:22,240
then you get this engagement letter that

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says hey we're going to audit you and

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then later you find out it's 100

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patients 100 claims uh and a

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statistically valid random Le and yeah I

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00:15:30,759 --> 00:15:36,079
mean if you if you get any kind of uh

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communication from the OIG it's serious

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stuff and and you need to take it very

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00:15:38,759 --> 00:15:43,480
seriously and make sure you're ready now

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00:15:40,720 --> 00:15:44,839
obviously work plan things are a bit

360
00:15:43,480 --> 00:15:46,959
different right that's why really

361
00:15:44,839 --> 00:15:49,079
focused on you but right if you're

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00:15:46,959 --> 00:15:51,240
getting one of these it's going to

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00:15:49,079 --> 00:15:53,120
follow the track you you said Bryan

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00:15:51,240 --> 00:15:56,440
you're gonna get the email and then it's

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00:15:53,120 --> 00:15:57,959
it's a work plan audit I mean maybe they

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give you a heads up with the phone call

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but it's a it's for like one patient I

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00:16:00,440 --> 00:16:07,920
mean it's very clear that that is not

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this so but anyway well as always Bryan

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thanks for the the

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00:16:12,519 --> 00:16:17,120
conversation well but at least we're

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here we've been fighting the good fight

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now for 25 years so we'll keep fighting

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00:16:20,399 --> 00:16:25,800
it as long as as long as there's a need

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so that's we're we're happy to to be

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advocates for the hospice community well

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00:16:28,079 --> 00:16:34,639
I'm on going to be starting my 25th year

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practice and you're much older than I am

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00:16:34,639 --> 00:16:41,839
so maybe 28th year for me 29th perhaps

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00:16:38,839 --> 00:16:43,440
so putting all of our brain power and

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00:16:41,839 --> 00:16:47,399
experience

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00:16:43,440 --> 00:16:50,079
to over 50 years of hospice well of

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00:16:47,399 --> 00:16:52,720
lawyer experience so exactly just

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00:16:50,079 --> 00:16:54,120
between the two of us so I know yeah

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00:16:52,720 --> 00:16:57,839
anyway

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00:16:54,120 --> 00:17:01,319
old that is true um but just wiser just

387
00:16:57,839 --> 00:17:06,079
wiser course awesome well thanks Brian

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00:17:01,319 --> 00:17:06,079
and until next time very good thank you

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Meg well that's it for today's episode

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of Hospice Insights: The Law and Beyond

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thank you for joining the conversation

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to subscribe to our podcast visit our

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00:17:16,319 --> 00:17:22,160
website at www.huschblackwell.com or sign up wherever

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00:17:19,679 --> 00:17:25,160
you get your podcasts until next time

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may the wind be at your

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00:17:26,839 --> 00:17:29,839
back

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