Editor's Note

Le Mot Juste

There’s a word for why many CMS audits are downright wrong.

• By David Kopf
• Jun 01, 2011

The French have a marvelous way with words. There are volumes of French words and expressions we English speakers use as regular parts of our speech: c’est la vie, quel dommage, esprit de corps, raconteur, cinéma vérité, rapprochement, sang-froid, enfant terrible, faux pas, excusez-moi — the list goes on and on.

This is why I haven’t much understood the British and American predilection of French-bashing. For all the freedom fries and wine pouring of the past decade, we would be wise to remember that 28 percent of English vocabulary owes its origins to either French, or what is known as Oïl languages — the languages or dialects spoken in the northern half of France, southern Belgium, and the Channel Islands.

Why is such a large chunk of English derived from French? Chalk it up to the English and Normans constantly battling one another and claiming each other’s territory. In fact, Modern English owes much to the “Anglo-Norman” spoken by royal courts long ago.

Heck, English speakers have even made-up or anglicized French expressions that the French don’t even use: homage, demitasse, double entendre, art deco, maître d’ and pièce de résistance, to name a few, heavily used examples.

Another example of Anglicized French: The poop deck. (If you’re as low-brow as I am, this nautical naughtiness should have elicited at least a chuckle.) How did English sailors come up with such a goofy name for the raised deck above the cabin at the stern of a ship? The French word la poupe, which simply means “stern.”

But regardless of whether you wish you could live in the City of Lights, or fail to see the charm of a cuisine that includes snails as an entrée, there’s one Franco-English term that should be near and dear to any HME professional’s heart: Estoppel.

Call me an ignoramus, but I hadn’t heard this term until recently. Estoppel is an English legal term derived from either the Old French word estoupail for a “stopper plug,” or the Old French verb estopper, which means to impede. Either way, as part of English and American law, the concept of estoppel basically describes this: you can’t continually watch someone make a violation, and then, much later after the fact, go out and charge them.

Here’s an example of this in civil law: eyeglass frame maker Aspex sued its competitor Clariti for infringing on an eyeglass frame patent, but waited three years to do so. During those three years, Clariti had continued selling the frames in question. Aspex was “estopped” and couldn’t pursue its case — and was found guilty of misleading conduct — because it led Clariti to believe it would not enforce its patent.

This could (and should) have a bearing on the issue of CMS’s RAC and CERT post-payment audits. Think about it: CMS is going back and auditing claims for documentation — claims that were paid years ago. So, let’s say a provider repeatedly didn’t include a specific piece of documentation for claims on a certain type of DME for the past four years, but CMS approved and paid the claims anyway. To now demand the documentation under pain of recoupment on those past claims is akin to the California Highway Patrol ticketing every driver for every time he or she has exceeded the speed limit on a California freeway in the past three years. CMS is entirely ignoring the fact that, by repeatedly paying those claims for years on end, it manifested a presumption on the part of providers that the paperwork wasn’t truly required.

This is one of many inconsistencies the industry is facing with CMS’s newfound love affair with auditing. Make sure to read “CMS Audits: The Dam Has Burst” to read more about how HMEs are contending with pre- and post-payment audits, and how the industry is working to demonstrate to CMS that it needs to rein in this over-zealous program.

This article originally appeared in the June 2011 issue of HME Business.