More on CMS Guidelines and Monitoring Nursing Homes
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This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Schenk Firm of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.
Schenk: Hello out there and welcome to episode 64 of the Nursing Home Abuse Podcast. My name is Rob Schenk.
Smith: And I’m Schenk Firm.
Schenk: And we are your co-hosts for this episode. As this episode goes to air, it will be April 16th, 2018 – Monday, April 16th, 2018. Hopefully, Will, you will have completed your taxes.
Smith: Yes, of course.
Schenk: But actually, strangely, you have, as most Americans who haven’t filed for an extension, you have until tomorrow, the 17th. Do you have an understanding as to why we have until tomorrow at midnight?
Smith: No, I don’t.
Schenk: So Tax Day is normally the 15th of April as we know, which was yesterday.
Smith: Which is also our friend Mike Jamal’s birthday.
Schenk: Oh really?
Smith: Yeah, it’s always on Tax Day.
Schenk: Okay. Hey Mike Jamal. So it’s Sunday, so you can’t have it due on Sunday, and today is actually Emancipation Day in Washington, D.C., so it’s observed, so Tax Day can’t be today, so it has to be tomorrow when D.C. is open, the federal district is open.
Smith: Oh.
Schenk: Today is also Patriots Day, which is a commemoration of what?
Smith: Tom Brady.
Schenk: Isn’t that bad? Aren’t we supposed to be Falcons fans?
Smith: Oh no, I’m just joking around. But anyways, Patriots Day…
Schenk: Patriots Day commemorates the Battles of Lexington and Concord. And do you know what tomorrow is besides being the actual Tax Day? What’s tomorrow? It’s significant in my life.
Smith: April 15th?
Schenk: April 17th.
Smith: I don’t know. Is that when you left the firm?
Schenk: No. April 17th, 2016 represents the first date that Daniela and I went on at Java Jive.
Smith: And Danielle is?
Schenk: Daniela…
Smith: Daniela.
Schenk: …is my lady.
Smith: Oh, your girlfriend.
Schenk: Yeah. Yeah.
Smith: I know who she is. I’m joking.
Schenk: But she doesn’t listen so she’s like…
Smith: Plus even if she heard this, she would not care.
Schenk: Yeah.
Smith: She’s Brazilian and she’s like, “Whatever.”
Schenk: “What is this? I don’t care. They make fun all day.” She sounds exactly like that.
Smith: Exactly. I thought she was in the room.
Schenk: Anyways for today’s episode…
Smith: For today’s episode, we have brought back Richard Mollot, who’s the executive director of the Long-Term Care Community Coalition, LTCCC. It’s a nonprofit organization dedicated to improving care for seniors and the disabled through legal and policy research advocacy and education.
His website is – their website is www.NursingHome411.org. I highly suggest that if you have a loved one who is about to go into a long-term care facility or assisted living or has dementia that you check out their website. They have a ton of information on there.
Schenk: Webinars, fact sheets, data…
Smith: Webinars – it’s all free.
Schenk: Yeah.
Smith: This is a policy and advocacy group that is behind the elderly and long-term care residents and the disabled.
Schenk: And we’re super happy to have him on this show. Richard, welcome back.
Richard: Thank you for having me again. I very much appreciate the opportunity to talk about issues that are very important to me.
Schenk: Absolutely, man. We had a great time. We ran out of time, you know what I mean? So we’re super happy we can get you back. A lot of great things to talk about.
Smith: Yeah, and I wanted to catch back up where we were talking about. We were talking about there’s the three phase CMS regulation rollout – 2016, 2017, 2018.
Richard: 2019.
Smith: Oh, I’m sorry, 2019.
Richard: It’s two years.
Smith: Oh, right, right. And so what we were discussing is that CMS has decided at the request of the – CMS, an organization that is supposed to be on the residents’ side, has accepted the request of the nursing home industry to delay these regulations. So what does that mean?
Richard: Well it’s very interesting, and I think that we’ll see what it means as that is rolled out. So as we were talking last time, the Nursing Home Reform Law, which is from 1987, that is still in place and that has not been repealed and that is the nexus of resident care rights in this country. I think it’s important to understand and to mention, I should say, that all states have to follow federal regulations. So virtually what I always work on as an advocate and as a researcher is it’s all focused on these federal requirements, which is what we’re talking about today.
It’s important for people to know, I think, that states can have additional requirements, but they’re not allowed to have less requirements than what we’re talking about. For instance, in the federal law, nursing home staffing is so important. Everyone recognizes that. Study after study has recognized that staffing levels are probably the most important component or the most important criteria for assessing whether a nursing home is providing good care. The federal requirement is that nursing homes have sufficient staffing.
Smith: Right.
Richard: It’s not a set number. But many states have gone further and they said, “We expect to have at least this minimum number.” But the states can’t take any of the minimum requirements that we’re talking about. So what’s happening now is that we have these federal requirements, we have these regulations that came out in 1992 and then those regulations were tweaked here and there over the course of the years, but in 2015, CMS said, “You know what? We’re going to completely revise and reorganize those regulations.”
So again, the standards themselves have not changed, but I would say they’ve been refined a little bit based upon our understanding of how people with dementia, how they live, that they’re not just a zombie like we talked about or looked at people 30, 40 years ago before my time, or that they can be restrained, chemically restrained or physically restrained, tied down, etc., and we said, “This is not a humane way to treat people.” So that’s a reflection, I would say, in the new regulations, but again, it is important for people to know that the basic standards, the prohibitions against physical restraints and chemical restraints, that has not changed since the early 1990s.
So what’s going on now is we’ve got regulatory change that’s implemented over a three-year period, started in 2016 and 2017 of last November, a couple months ago, was phase two, and then phase three is November of 2019. So again, the basic standards, the residents’ rights to care, to be free of antipsychotic drugging, to be free of abuse, to live with dignity, those have not changed. It’s just really how we are finessing our understanding of some of those standards.
So in addition to that being rolled out, we had mentioned before, might have been last week, that the F-tags are changing and the guidelines are changing as well. So the regulation that I’ve been saying, they provide the basic standard. They say, “You cannot give someone a chemical restraint. You cannot give someone physical restraint. You just can’t tie someone down for the convenience of staff.”
Smith: Sure. Absolutely. And can you explain what F-tags are? Because if you’re not a surveyor or an advocate or an ombudsman, I don’t think that most residents’ families understand.
Richard: Yeah, I’m sorry. I was going to do that. So the standards are there from the Nursing Home Reform Act. The regulations spell out that you have to ensure that residents are treated with dignity, that the resident gets to choose his or her own doctor. There are a host of regulations. And then on top of that, the way that those regulations are implemented – by implemented, I mean how they translate from being words on paper in the federal register to being in the lives of residents and realized in the lives of residents are in two ways.
One is, like you mentioned, through the F-tag system. So for each regulatory system is what’s called a federal tag, or an F-tag. And what that essentially means is CMS has assigned a number to that regulatory standard – it’s like F-252 or F-517, etc. And the reason why that is important and important for families or residents and the public to know is that if you go onto Nursing Home Compare or if you go into your nursing home, either way, you can get a copy of the latest statement of deficiency. And what that is – when a nursing home is inspected, there is a statement, a written record of any of the citations or what the federal government calls deficiencies that were found. And each deficiency is associated with an F-tag.
So that can help you – even someone who is just going to visit a facility to see whether they want to place their loved one there or they’re in the facility with a family member or a resident, that’s really valuable. Usually you’ll find the statements of deficiency have to be made available for anyone who comes to the nursing home, including residents and families. Oftentimes it’s at the front desk, but optimally, it should be in a binder or something by the front of the building rather than behind the front desk. The reason why I mention that is sometimes the facility will put it behind the front desk because they want to make it harder for people to find.
Smith: Right. And to explain it to some of our listeners, what Richard’s talking about, and I don’t know if we’ve done a podcast on this or not, but there are – as far as deficiencies, there are severity levels, no actual harm with potential for minimal harm all the way to immediate jeopardy to resident health or safety, and then the scope of the deficiency is either that it is an isolated incident, a pattern or it’s widespread. So when you look at these deficiency statements, you can see the specific category of whether it’s F-whatever that has to do with dietary guidelines and that it’s a widespread problem where nobody is getting enough calories or something. So that’s important to note. But why are they changing the F-tag structure? I understand that a lot of people were frustrated with that? Why are they doing that?
Richard: You know, I don’t know why they did that, to be honest. I think that we had spoken last time about the changes to the regulations, whether those are really necessary, and I think a lot of us were frustrated that they made these changes to the regulations. Again, the standards are there, but think about it – when we all do our work, we know there are certain things we encounter. You sit down at night in front of a TV and you turn the TV on, you know what channel is NBC, you know what channel is ESPN or CNN or Fox News, whatever, you know what those channels are. If someone were to come in and scramble up your whole TV, you can imagine it would be kind of frustrating and difficult to figure out.
So think about that in terms of a nursing home surveyor is typically just there for three or four days for the entire year, and the whole system they’ve been using for a couple years or sometimes for 10 or 20 years has now completely changed in terms of the regulatory language and the guidelines, which we’ll talk about in a moment if that’s okay, and the F-tags that I used to know – if I were a surveyor, I know as a researcher, if I come in and I see someone is receiving drugs unnecessarily, that’s a chemical restraint, that’s F-222. I knew right away. So I didn’t have to waste my time looking up and seeing, “Oh, what’s the new F-tag?”
So to get back to your point to the scope of severity, which is so important that we’ve done studies, the government accountability office has done studies, other academic researchers have done studies over the years that have found that consistently the state surveyors tend to under-cite facilities both in terms of their scope and in terms of the severity of the problems. So even when they identify, which problems tend to be under-identified in nursing homes, they also have a significant tendency to under-scope it and under-identify it in terms of severity.
What that means is that unless they can in their minds prove that something is widespread, they will say it only affected a couple people. And what you see and what I see when I do research on this is that one of the statements of deficiency said that four out of five people reviewed had inappropriate antipsychotic drugging – there is no clinical indication for receiving the dangerous drug. They’ll say that was limited because that was only four people. And what we’ve been saying to CMS for decades is, “Look, you have to base your evaluation on what you looked at. If 80 percent, four out of five nursing home residents that you looked at had this problem, then that is a widespread problem. Either you find that it’s widespread based upon that or you expand the scope of your inquiry to make that determination.
And the reason why this is so important, just as a general proposition is that unless a facility – excuse me – unless a deficiency is identified as having caused harm or immediate jeopardy, a nursing home will almost never be fined. Nursing homes, even though they can be fined, they’re almost never fined unless the surveyor has substantiated that there is significant harm or immediate jeopardy to a resident.
And this is something, because we’re so confused about it, we have been focusing on it more and more. So I did research, for instance, two years ago now that looked at the extent to which states are citing, and what we found was that states, when they cite for a healthcare violation in a nursing home, they only identify that as causing any harm to a resident 5 percent of the time. Now how is that possible? We’ve even found that when they find that there’s a pressure ulcer – now I’m sure your audience has an idea that pressure ulcers are serious…
Schenk: Absolutely.
Smith: We talk about it frequently.
Richard: What?
Smith: I’m saying we talk about those frequently, so yes.
Richard: So even when they find that there is a pressure ulcer and even when they make the connection that there was poor pressure ulcer monitoring and care, they only find resident harm about 25 percent of the time. How can that – obviously you know I’m an advocate. I take a strong position for enforcement and for good quality care, but I cannot understand for the life of me if you identify poor pressure ulcer care leading to a pressure ulcer, how that is not harm 100 percent of the time.
Schenk: Yeah, that’s contradictory.
Richard: That’s why the work of advocates including attorneys is so important, because we need to have some kind of accountability, because again if it’s not cited at a level of harm and if there’s not a penalty associated with it, what you are saying is it’s okay for them to do this.
Smith: Yeah, and the problem is, like a lot of corporations when they consider lawsuits for torts that they might commit, it’s a balancing act. What’s the cost of making sure this doesn’t happen versus the cost of dealing with it if it does happen? And it seems like they have figured out, “Look, we can cut back on staffing so that people aren’t getting turned every two hours. We can cut back on other things that might help prevent bedsores because at the end of the day, we’re not really getting fined all that much and it’s worth the occasional lawsuit for us,” which is a horrible way to look at it, but that’s the way that they do.
You talked about the guidelines. So with regard to these guidelines, these guidelines are still there. Are they not being enforced in general?
Richard: Well so again, we have the Nursing Home Reform Law, we have the regulations that spell out what the basic expectations are, and what the guidelines are is that’s a description of what is expected. The guidelines are really geared to surveyors, what they should be seeing in terms of compliance for each of those regulatory requirements. But as CMS said, they’re also reporting for – and nursing homes can obviously – and CMS said they’re reporting for residents and people who work with them to know what the expectations for.
So a guideline here, for instance, to get back to the antipsychotic drug use, the regulation says no use of chemical restraint, no unnecessary drugs. The guidelines say that if someone is given an antipsychotic drug because they’re a danger to him or herself, as I mentioned last week, two things have to happen. This is the guideline – that we expect to see there’s gradual dose reduction, that the facility is taking immediate steps to reduce the level of drug, and two, that there are non-pharmacological approaches being implemented. By that, I mean not using drugs, but instead evaluating what is going on with this resident. Why is he or she behaving a certain way, crying or spitting at us? What led up to it? Is it something that happened in the afternoon? Is it something that happens with an approach to care like when we want to give her a bath or when we want to wake her up for something? What is going on and how can we address that?
So that’s what the guidelines say and that’s why the guidelines are so important. So an inspector came in, somebody came in and they see someone who’s on antipsychotic drugs, what they are supposed to do is say, “Okay, let me look at the clinical records. Let me talk to the resident if possible and family members and say, ‘Is your resident receiving non-pharmacological approaches? Is the facility evaluating what is going on with her? Maybe she has a urinary tract infection, which is something that happens quite frequently. Are they looking at other things that could be going on and trying other things to address those issues?’”
So those are what the guidelines do and the guidelines have been around since the ‘90s, but all those guidelines also changed, and I as well as Consumer Voice deputy directors were on the CMS work group that developed the new guidelines, and those guidelines, those changed guidelines came out also in November of last year, and that’s why some of these issues are so important. Again, we have the regulatory changes that just came out, the regulations with phase two was November of 2017, a couple months ago. The new guidelines went into effect November of 2017. The whole new updated system went into effect November of 2017, and CMS changed how surveys, how inspections are conducted, and that went into effect November of 2017. And then on top of it, we have the Trump administration that is also pulling back on some of these things.
So it’s a very treacherous time, to be honest. But we wanted to talk about the survey system as well. I wanted to tie in for everyone how these things are coming together. It’s all happening right now, starting November of 2017, so just a couple months ago, that all these major changes are taking place, and then on top of it, we have some back peddling, some diminishment going on by the Trump administration.
Smith: So are the changes taking place but there are just no monetary penalties?
Richard: Correct. So for some of the regulatory standards, the nursing home industry lobbyists – the nursing home industry has always argued that standards are too high and that they don’t get enough money to meet those standards. I’m in my 50s, but before my time, 40-50 years ago, I read old documents and they say exactly the same thing that we hear right now. That is something that’s worked – from my perspective, it’s worked for the industry. I should say from my perspective, it’s a way for the industry to essentially hold our loved ones hostage. They take in a resident. They mention last week they are required, when they take someone in, they are required to meet those standards, and then they say, “Oh, but we don’t get enough money.”
Smith: Right.
Richard: “But we’ll still hold onto your mother.” That’s the part that just doesn’t make any sense to me. They’re still holding on, they’re still getting paid a couple hundred dollars more a day generally to provide that care – they just don’t do it and because of that powerful lobby, they’re able to get away with it.
Smith: Yeah, that’s a shame. And it seems like, in all honesty, to be somewhat politically neutral here, it seems like this is a problem for both sides, certainly the new administration is siding with the nursing home industry, but these problems have been going on for a while, so I blame all parties involved. I really do. And I don’t understand why – you would think that elder Americans would be a common interest for all people, but they’re not. They’re really not.
Richard: I think people don’t understand the importance of nursing home care until they actually need it. And there was actually a study that came out about a year that found out that if you live to be in your late middle age, like late 50s, you have over a 50 percent chance of being in nursing home care at some point.
Smith: Again, I want to talk about this because I was reading a couple of things on your website, and that one blew my mind, and I’ve been dealing with nursing homes for about 16 years, but 40 percent of those over the age of 65 are going to require nursing home care. That is a huge number.
Richard: And it actually is higher than that. There was a new study that came out last year that found based upon the data that it’s actually higher than 40 percent. It’s over 50 percent.
Smith: I mean with a number like that, it just seems absurd to me that we don’t have some of the best nursing homes on the planet, and we have the exact opposite, some of the worst.
But I also want to talk about something else from your website that I was reading about that’s really interesting and it’s about assisted living homes. Can you talk about – because we’ve got about five minutes left – can you talk about what’s going on with the problem with assisted living homes and how they might be different from nursing homes?
Richard: Sure. So because nursing homes have, and for many years, have had such a bad reputation, and you’re right, it’s not just a Donald Trump issue or a Republican issue, it’s really all sides that we – as I mentioned last week, we’re outnumbered. We’re small groups. We’re two small groups that work on this nationally. Most states don’t have a state advocacy group that’s working for them. There’s the ombudsman program, which more helps on the individual level. At the end, there’s a very powerful lobby that year in and year out, whether it’s Republican or Democratic administration, so we’re all faced with that in terms of advocating for a resident’s rights. Now I completely lost my train of thought again. I apologize.
Smith: That’s okay. We wanted to talk about this new federal landmark study.
Richard: Oh yes, so as I was saying, nursing homes have historically been a very institutional, they have a very poor, I’d say deservedly poor reputation in terms of not being good places to live or get care. So more and more people have turned to assisted living because the promise of assisted living is that me or my loved one can live safely here but in an environment that’s more home-like, that’s more centered on resident dignity and independence, etc.
And we’ve done studies on this over the years but a brand new study, I’d say a landmark study that came out last week from the Government Accountability Office that found that there are actually a significant problems of what they call critical incidents in assisted living that receive very little attention.
And in a nutshell, what we’ve found over the years is that more and more people are going to assisted living that had significant needs, almost to a point of a nursing level of need, but they wanted to avoid nursing home care. Oftentimes that’s private pay, but more and more, states are furnishing or providing opportunities for people on Medicaid to go into assisted living rather than a nursing home.
Smith: It says here that Americans are spending more than 10 billion per year to fund people living in these assisted living facilities. That is a lot of money.
Richard: And that’s just Medicaid.
Smith: Yeah. What is a critical incident?
Richard: Oh, so a critical incident, well that’s – what GAO did, the Government Accountability Office did is let’s try to get an idea of what’s going on here, and a critical incident is something that – to give you a rough idea of what it is, there’s a definition but it could be physical abuse, it could be sexual abuse, it could be emotional abuse, it could be other things that happen, a fall, etc. What GAO actually found is that different states identify critical incidents differently. So the point of this and the importance for the GAO report was they looked to see, well let’s find out what’s going on with assisted living. The government’s paying a lot of money now. People are depending upon it more and more, both private pay and government pay. Let’s find out what’s going on.
And what they found out is that states don’t even track – many to most states, I should say, don’t seem to be tracking, or they’re not monitoring it very effectively, so they use this idea of critical incident, which could be a range of things – they say, “What do you define as a critical incident and what are you tracking?” and most states couldn’t even report on that or anything.
Smith: Right.
Richard: And then those states, there are 48 states that provide Medicaid to assisted living, and those were the 48 states that responded, and of those, I think only 22 were able to say, “We’re tracking these critical incidents,” but some of them defined it differently. Some states only reported one for the entire year. The study focused on 2014. There were some things only reported once, but there were over 20,000 incidents that were reported just in 22 states just related to the Medicaid assisted living. So this just gives you a tip of the iceberg idea of what is going on in assisted living, and the industry has again been extremely powerful in ensuring that there is no federal standard, no federal safety standard or healthcare standard for assisted living and that the state standards tend to be very low, state enforcement tends to be even lower in terms of inspections and in terms of citations, etc., for assisted living as they are for nursing homes.
So assisted living in short can be great or it can be not so great, but it’s buyer beware. You could find some place that’s good or you could find some place that’s bad. And a really quick anecdote, but I happened to be in an assisted living a couple weeks ago visiting the day before the GAO report came out, and it was a lovely assisted living. It looked kind of like a Hilton Garden Inn or a nice hotel you would stay at.
Smith: Sure.
Richard: And when I went inside it was fine. And I came across a resident with dementia who had her keys on a necklace and a room number on a necklace, and she was standing outside her door and she could not remember how to get into her room. And she finally figured it out after she figured out how to put the key into the door, remove the key, had to put it in the door and then she could not figure out how to get the key out. And if she hadn’t been helped, if we hadn’t been there, I think she would have strangled herself. Unlike a nursing home where you have a nurses station, etc., nobody else was in the hallway besides the two of us. And I watched this woman, the door swung open and her neck was still attached to the door handle and she couldn’t figure out how to get it out, and if we hadn’t been there, who knows what could have happened to her.
Smith: We had a very tragic case about a year ago where a man with dementia ended up strangling himself on accident. It is very dangerous and it certainly happens. And that’s even more disheartening that it’s in an assisted living facility.
Schenk: It highlights your point there that it can be sometimes more dangerous when you have an individual that should not be in an assisted living facility that’s there. I mean it creates a more hostile environment for them.
Smith: Yeah.
Schenk: But Richard, lots of great information this episode. We really appreciate you again coming back. Again, for the listeners out there, your website…
Smith: NursingHome411.org – couldn’t be any easier to remember. We’re going to do everything that we can to get attention.
Schenk: It’s a fantastic website, lots of great information. But other than that website, Richard, how can people get what you’re throwing at them and follow you on the social media?
Richard: Sure. So I’m on Twitter. My Twitter handle is @LTCConsumer, so it’s L-T-C-C-O-N-S-U-M-E-R. And then on Facebook, which I encourage everyone on Facebook to join us is Facebook.com/LTCCC – Larry, Thomas, Carol, Carol, Carol, and we post a lot of good stuff up there. Everything, again, that we have on our website is absolutely free and we have some – just to mention really quickly because we spoke about assisted living, we have some very old guidebooks, they’re from 2002 so they look a little bit dated but they’re very good if you’re living in or thinking about assisted living to do a search for assisted living guidebook on our website. They’re absolutely free and they help people to think about what they want when they go to assisted living and how they can achieve that.
Smith: Awesome man. Well you’re fighting the good fight. I really enjoyed talking with you and we wish you the best of luck, and you’re more than welcome to come on any time you want because there is a lot of material to cover and who knows what’s going to happen with this administration with so many other topics that affect long-term care residents.
Richard: Well thank you again so much for inviting me. I really appreciate it and I appreciate the work that you’re doing and then also getting this out to people. It’s so valuable that people know what their rights are and what they can do.
Schenk: Fantastic. Thank you. Thank you very much, Richard.
Richard: Sure. Bye-bye now.
Schenk: Bye-bye. Richard now has joined – I don’t know, Saturday Night Live has the Five-Timers Club. Richard is in the Two-Timers Club.
Smith: Yes. That’s right.
Schenk: So two times a guest.
Smith: And hopefully he’ll be back again. Lots of good information.
Schenk: Yeah. Yeah, yeah. So anyways, I’m really, like again, we encourage everybody to not only listen but you can also watch the episodes. And again, for as an added treat, last week we began instituting under Jean’s insistence that we need two different cameras, but we have a GoPro set up on the side of the table here that is capturing kind of a, not behind the scenes because it’s not behind us because that’d be weird, on a sidelines kind of vantage point to the extent that you wanted that. You asked and you received as a listener. We’re responsive, like an outpouring of, “Hey, what does the right side of Will’s face look like?”
Smith: We have no idea if that even works.
Schenk: I think it will work. I think – you know, we’ve got our fingers crossed. I can’t even get my telephone to work and my screen is cracked.
Smith: Right.
Schenk: Like I paid whatever and the screen cracks immediately.
Smith: Well.
Schenk: Anyways.
Smith: And speaking of crack, let’s…
Schenk: Let’s crack this up. Let’s crack the whip on wrapping this up. Anyways guys, thanks again for watching, for listening, for consuming the Nursing Home Abuse Podcast in any form that you consume it through. You can always watch us on NursingHomeAbusePodcast.com – it’s at NursingHomeAbusePodcast.com, or our YouTube channel, or you can check us out on Spotify, iTunes, Stitcher.
Smith: Stitcher, whatever.
Schenk: Whatever. Out on the streets, on your radio. And with that, folks, we will see you next time.
Smith: See you next time.
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