David Wong and David Y. Wong, MD Inc., DAB CR5136 (2018)

Department of Health and Human Services
Civil Remedies Division

Docket No. C-18-698
Decision No. CR5136


I grant summary judgment in favor of the Centers for Medicare & Medicaid Services (CMS) sustaining the determination of a Medicare contractor, as affirmed upon reconsideration, to revoke participation in Medicare of Petitioners David Wong (Petitioner Wong), effective November 10, 2017, and David Y. Wong, MD Inc., effective November 22, 2017.

I.  Background

CMS moved for summary judgment, filing a brief and nine exhibits, identified as CMS Ex. 1-CMS Ex. 9, in support of its motion.  Petitioners responded to the motion with a brief and five supporting exhibits, none of which they identified.  CMS objected to my receiving four of these exhibits.

It is unnecessary that I rule on the admissibility of Petitioners’ exhibits.  I receive neither party’s exhibits into the record inasmuch as I grant summary judgment based on undisputed material facts.  I cite to some of the exhibits but only to illustrate facts that are not in dispute.

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II.  Issue, Findings of Fact and Conclusions of Law

A.  Issue

The issue is whether a Medicare contractor lawfully determined to revoke Petitioners’ Medicare participation.

B.  Findings of Fact and Conclusions of Law

Petitioner Wong is a physician who has participated in Medicare.  Petitioner David Y. Wong, MD Inc. is a professional corporation owned and operated by Petitioner Wong.  It also has participated in Medicare.

It is undisputed that on November 21, 2014, the State of California suspended Petitioner Wong’s license to practice medicine for 45 days.  CMS Ex. 1.

On August 9, 2017, Petitioner Wong filed an application to revalidate his Medicare credentials.  CMS Ex. 2.  On August 21, 2017, he filed an application to revalidate the Medicare credentials of David Y. Wong, MD Inc.  CMS Ex.  3.  Both applications requested the applicant to state whether he or it had been the subject of a final adverse action, including suspension of a license to practice medicine (in the case of the practice application, the specific question was whether an individual with ownership interest or managing control was ever the subject of a final adverse action).  CMS Ex. 8 at 2; CMS Ex. 9 at 2.  In neither the individual nor the corporate application did Petitioners disclose that Petitioner Wong’s license to practice medicine in California had been suspended.

CMS may revoke a supplier’s participation in Medicare in the circumstance where that supplier provides false or misleading information in an application to enroll or remain enrolled in Medicare.  42 C.F.R. § 424.535(a)(4).  Petitioners, by not disclosing that Petitioner Wong’s license to practice medicine in California was suspended, falsely represented that no final adverse action had ever been taken against him.  That is ample grounds for CMS to revoke Petitioners’ participation in Medicare.

Petitioner Wong asserts that he misunderstood the applications’ requirement that he disclose final adverse actions against him.  He contends that he considered the suspension to be only a “temporary” and not a final adverse action.  This assertion gives Petitioners no defense.  Petitioners were explicitly asked to state whether Petitioner Wong’s license had been suspended.  Petitioners were required to disclose that suspension whether or not they considered it to be “temporary.”  Petitioners cannot legitimately argue that they misunderstood that which was required of them.  As Medicare participants, it was their

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duty to understand and comply with participation requirements.  Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 63-64 (1984).

Petitioners argue also that their Medicare participation should not revoked in consideration of both the needs of their Medicare beneficiary patients and the care that they provide to them.  They argue that those patients will suffer because they will lose the continuity of care that Petitioners offer to them and will be forced to find a physician or physicians who are unfamiliar with their medical issues and needs.  They also assert that as a matter of compassion, CMS should forgive what they characterize as Petitioner Wong’s simple and isolated error.

These arguments are equitable in character and I have no authority to hear and decide them.  US Ultrasound, DAB No. 2302 at 8 (2010); Family Health Care Servs. of Darke Cnty., Inc., DAB No. 2269 at 18-19 (2009).