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                              Michelle Kapon, MD and Michelle Kapon, MD, LLC, DAB CR6003 (2021)
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Michelle Kapon, MD and Michelle Kapon, MD, LLC, DAB CR6003 (2021)








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





Michelle Kapon, MD, and Michelle Kapon, MD, LLC
(NPIs:  1417115841, 1891049862),
Petitioners,

v.

Centers for Medicare & Medicaid Services.
Docket No. C-21-1008Decision No. CR6003December 16, 2021

        
              
    

      DECISION

The Centers for Medicare & Medicaid Services (CMS) upheld a determination by CGS Administrators, LLC (CGS), a Medicare administrative contractor, revoking the Medicare enrollment and billing privileges of Petitioners, Michelle Kapon, MD (Dr. Kapon) and Michelle Kapon, MD, LLC (the practice) pursuant to 42 C.F.R. § 424.535(a)(3) because Dr. Kapon had been convicted of felony offenses that are detrimental to the Medicare program and its beneficiaries within the previous 10 years.  CMS also upheld Dr. Kapon’s placement on its Preclusion List.  I affirm the revocation of Petitioners’ Medicare enrollment and billing privileges and Dr. Kapon’s placement on the Preclusion List.

I. Background and Procedural History

Petitioners are a physician and her practice.  CMS Ex. 12 at 7, 14.  On January 29, 2021, the United States Attorney for the Northern District of Ohio, Eastern Division, filed a three-count information charging that Dr. Kapon conspired to solicit, receive, offer, and pay kickbacks in connection with federal health care programs, in violation of 18 U.S.C.

**Page 2**

§ 371, and that she received kickbacks in connection with a federal health care program, in violation of 42 U.S.C. § 1320a-7b(b)(1)(B).1
CMS Ex. 7 at 3-6. The information charged, in pertinent part, that the kickbacks would “induce” Dr. Kapon to “order and arrange for ordering . . . gonorrhea and chlamydia tests . . . for which payment may be made in whole or in part under a federal health care program.”2
 CMS Ex. 7 at 3. The information further charged that an object of the conspiracy was for Dr. Kapon to enrich herself “by receiving kickbacks from [a co-conspirator] in return for sending him these specimens.”  CMS Ex. 7 at 4.

On February 22, 2021, Dr. Kapon “entered a plea of guilty to Counts 1, 2, and 3 of the Information pursuant to a plea agreement.” CMS Ex. 8 at 1. A United States District Judge accepted the guilty plea on March 10, 2021.3
 CMS Ex. 10 at 1-2.

On March 8, 2021, Dr. Kapon submitted a Form CMS-855I enrollment application to update her enrollment record.  CMS Ex. 12.  In Section 3, pertaining to final adverse legal actions, Dr. Kapon reported final adverse legal actions of a “Bill of Information” and “Report and Recommendation,” along with a “Notice of Suspension” by the Ohio Medicaid program. CMS Ex. 12 at 13.

On March 23, 2021, CGS informed the practice that it had revoked its Medicare enrollment and billing privileges, effective February 22, 2021, pursuant to 42 C.F.R. § 424.535(a)(3). CMS Ex. 6 at 1. CGS also imposed a bar to re-enrollment until February 23, 2031, and informed the practice that it had been added to CMS’s Preclusion List. CMS Ex. 6 at 1, 3.

Shortly thereafter, on April 5, 2021, CGS informed Dr. Kapon that it had revoked her Medicare enrollment and billing privileges, effective February 22, 2021, pursuant to 42 C.F.R. § 424.535(a)(3). CMS Ex. 5 at 1.  CGS also imposed a bar to re-enrollment until February 23, 2031, and informed Dr. Kapon that it had added her to CMS’s Preclusion List. CMS Ex. 5. at 1, 3.

**Page 3**

Petitioners, through their current counsel, requested reconsideration of CGS’s determinations on April 30, 2021. CMS Exs. 3, 4.  Petitioners acknowledged that Dr. Kapon received $15 for each specimen she sent to another physician’s laboratory, explaining that “[a]t no time did Dr. Kapon know or realize that by accepting a minimal fee for sending laboratory tests to the lab owned by [a co-conspirator], that she was violating the law.”  CMS Exs. 3 at 3; 4 at 3.  Petitioners argued that the offense conduct was not detrimental to the Medicare program and its beneficiaries.  CMS Exs. 3 at 4-5; 4 at 4-5.

In separate reconsidered determinations dated June 11, 2021, CMS, through its Provider Enrollment & Oversight Group, upheld the revocation of Petitioners’ Medicare enrollment and billing privileges and Dr. Kapon’s inclusion on the Preclusion List.  CMS Exs. 1, 2. CMS determined that Dr. Kapon’s offenses are *per se* detrimental to the best interests of the Medicare program and its beneficiaries and are akin to the enumerated offenses that would result in mandatory exclusion, explaining:

CMS finds the federal offenses of Conspiracy to Solicit, Receive, Offer and Pay Kickbacks in Connection with a Federal Health Care Program, and Receipt of Kickbacks in Connection with a Federal Health Care Program are akin to one of the enumerated crimes at § 424.535(a)(3)(ii)(B), specifically, insurance fraud. As indicated in this regulation, the offenses are not limited by scope or severity. According to the Information, Dr. Kapon knowingly and willfully solicited and received, direct and indirect remuneration, kickbacks, in the form of checks, $15-20 per specimen, from an individual in return for referring her patients for gonorrhea and chlamydia tests to be performed for which Medicare and Medicaid payment may have been made (see Exhibit 3).  Medicare and Medicaid are health care insurance programs operated by Federal and State governments. Although Dr. Kapon may not have billed Medicare and Medicaid directly for lab services, the lab specimen[s] she provided to the lab were originated from her patient[s] that the lab then billed to Medicare and Medicaid for gonorrhea and chlamydia testing. Therefore, indirectly, Dr. Kapon was a willing participant in the insurance billing scheme to defraud the Medicare and Medicaid programs.  Furthermore, Dr. Kapon was compensated for referring these lab specimens to the lab, thereby creating an incentive for her to refer testing to a lab that committed health care insurance fraud.

CMS also finds that Dr. Kapon’s federal offenses are akin to the enumerated offenses at § 424.535(a)(3)(ii)(D), felonies that would result in mandatory exclusion under section 1128(a) of the Act. Under § 1128(a)(1) of the Act, a felony conviction relating to health care fraud will result in a mandatory exclusion from all Federal health care programs. Dr. Kapon’s

**Page 4**

convictions are plainly convictions related to health care fraud. Although Dr. Kapon’s felony offenses may not have resulted in exclusion from the Medicare program and all other federal health care programs, CMS finds that her felony convictions are *per se* detrimental to the best interests of the Medicare program and its beneficiaries.

CMS Exs. 1 at 4; 2 at 4.

CMS alternatively determined that Dr. Kapon’s felony convictions are “detrimental to the best interests of the Medicare program based on the unique circumstances of the offenses.”  CMS Exs. 1 at 4; 2 at 4. CMS stated that for nearly three years, “Dr. Kapon received kickbacks from another physician to induce her and the Practice to order and arrange for ordering gonorrhea and chlamydia tests for which payment may be made in whole or in part under Medicare and Medicaid.”  CMS Exs. 1 at 4-5; 2 at 4-5. CMS explained that Dr. Kapon “committed these felonious acts to enrich herself with additional income at the expense of her patients’ well-being and safety,” and that such “criminal conduct reflects negatively on Dr. Kapon’s ethics and professionalism as a physician.” CMS Exs. 1 at 5; 2 at 5. CMS determined that Dr. Kapon’s felony conviction “calls into question her trustworthiness and veracity as it relates to her ability and willingness to abide by government rules and requirements,” and that “the Medicare program and its beneficiaries may be at risk if Dr. Kapon is allowed to continue to participate in the Medicare program.” CMS Exs. 1 at 5; 2 at 5. Based on the date the District Court accepted Dr. Kapon’s guilty plea, CMS modified the effective date of the revocation to March 10, 2021. CMS Exs. 1 at 7; 2 at 6-7; *see*CMS Ex. 10 at 1-2.

After determining that Dr. Kapon’s criminal offenses were detrimental to the Medicare program, CMS also upheld Dr. Kapon’s placement on its Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 423.100 for a period of 10 years from the date of her conviction.  CMS Ex. 1 at 6-7.  CMS explained that the conduct underlying the felony offenses is “incredibly severe because it led directly to financial losses to the Medicare and Medicaid program.” CMS Ex. 1 at 6.  CMS again recognized that Dr. Kapon engaged in the criminal scheme for nearly three years. CMS Ex. 1 at 6.  CMS determined that “Dr. Kapon’s conduct negatively affects the integrity of the Medicare program because her actions reflect poorly on the medical profession as a whole and jeopardizes public confidence in Medicare providers and suppliers.”  CMS Ex. 1 at 6.  CMS explained that Dr. Kapon “was a partner in the conspiracy to defraud the Medicare and Medicaid programs,” and that she “provided the lab specimens from her patients to the labs to be tested for gonorrhea or chlamydia so the lab could bill Medicare and Medicaid knowing that the services billed may not be medically necessary.”  CMS Ex. 1 at 7.  With respect to CGS’s placement of the practice on the Preclusion List, CMS “conclude[d] that there was an error made” in that determination and “overturn[ed] the placement of the Practice on the CMS Preclusion List.”  CMS Ex. 2 at 6-7.

**Page 5**

Petitioners filed a request for an administrative law judge (ALJ) hearing on August 8, 2021.  CMS filed a combined brief and memorandum of law in support of summary judgment (CMS Br.), along with 12 proposed exhibits (CMS Exs. 1-12).  Petitioners submitted a brief and opposition to CMS’s motion for summary judgment and two proposed exhibits (P. Exs. 1 2).  CMS filed a reply brief.  In the absence of any objections, I admit CMS Exs. 1-12 and P. Exs. 1-2.

Because the parties have not submitted the testimony of any witnesses, a hearing is unnecessary for the purpose of cross-examination of any witnesses.  Pre-Hearing Order §§ 12-14.  The record is closed, and I issue this decision on the merits.4

II. Issues

1. Whether CMS had a legitimate basis to uphold the revocation of Petitioners’ Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) based on Dr. Kapon’s March 10, 2021 felony convictions; and,

2. Whether CMS had a legitimate basis to uphold Dr. Kapon’s placement on its Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 423.100.

III. Jurisdiction

I have jurisdiction to decide this case.  42 C.F.R. §§ 498.1(g), 498.3(b)(17) and (20), 498.5(l)(2); *see* 42 U.S.C. § 1395cc(j)(8).

IV. Findings of Fact, Conclusions of Law, and Analysis5

As a physician, Dr. Kapon is a supplier of health care services for purposes of the Medicare program. *See* 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202, 410.20(b)(1). In order to participate in the Medicare program as a supplier, an individual must meet certain criteria to enroll and receive billing privileges. 42 C.F.R. §§ 424.505, 424.510. CMS may revoke a supplier’s enrollment and billing privileges for any reason stated in 42 C.F.R. § 424.535(a).

CMS may revoke a supplier’s enrollment based on the existence of a felony conviction, as set forth in 42 C.F.R. § 424.535(a)(3), which provides:

**Page 6**

(3) *Felonies.*  (i) The provider, supplier, or any owner or managing employee of the provider or supplier was, within the preceding 10 years, convicted (as that term is defined in 42 [C.F.R. §] 1001.2) of a Federal or State felony offense that CMS determines is detrimental to the best interests of the Medicare program and its beneficiaries.

42 C.F.R. § 424.535(a)(3).  At the time of the initial determination, CMS could impose a bar to re enrollment for a minimum of one year, but no more than ten years.  42 C.F.R. § 424.535(c)(1)(i).

Additionally, CMS has established a single list of providers and prescribers who are precluded from being reimbursed for Medicare Advantage items or services or Part D drugs they furnish or prescribe to Medicare beneficiaries.   42 C.F.R. §§ 422.222, 423.120(c)(6).  As relevant here, CMS may place an individual, entity, or prescriber on its Preclusion List under the following circumstances:

(3) The [individual, entity, or prescriber], regardless of whether [they are or were] enrolled in Medicare, has been convicted of a felony under Federal or State law within the previous 10 years that CMS deems detrimental to the best interests of the Medicare program.  Factors that CMS considers in making such a determination . . . are –

(i) The severity of the offense;

(ii) When the offense occurred; and

(iii) Any other information that CMS deems relevant to its determination.

42 C.F.R. §§ 422.2, 423.100.

***1. Dr. Kapon, a physician, was the owner and managing employee of the practice.***

***2. On January 29, 2021, the United States filed an information charging Dr. Kapon with one felony count of conspiracy to solicit, receive, offer, and pay kickbacks in connection with a federal health care program, and two felony counts of receiving kickbacks in connection with a federal health care program.***

***3. Count One of the information charged that kickbacks were paid to induce Dr. Kapon to order and arrange for ordering gonorrhea and chlamydia tests for which payment may be made in whole or in part under Medicare,***

**Page 7**

***Medicaid, or a Medicaid managed care organization, and that an object of the conspiracy included Dr. Kapon enriching herself.***

***4. On March 10, 2021, a United States District Judge accepted Dr. Kapon’s guilty plea to all three counts charged in the information.***

***5. Dr. Kapon has been convicted of felony offenses as contemplated by 42 C.F.R. § 1001.2.***

***6. On March 23, 2021, CGS revoked the practice’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3).***

***7. On April 5, 2021, CGS revoked Dr. Kapon’s Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) and placed her on CMS’s Preclusion List.***

***8. On June 11, 2021, CMS upheld the revocation of Petitioners’ Medicare enrollment and billing privileges and Dr. Kapon’s placement on the Preclusion List.***

***9. CMS properly upheld the revocation of Petitioners’ Medicare enrollment and billing privileges pursuant to 42 C.F.R. § 424.535(a)(3) based on its determination that Dr. Kapon has been convicted of felony offenses that are detrimental to the best interests of the Medicare program and its beneficiaries within the previous 10 years.***

***10. Because Dr. Kapon has been convicted of felony offenses that are detrimental to the Medicare program within the previous 10 years, CMS had a legitimate basis, after considering the factors at 42 C.F.R. §§ 422.2 and 423.100, to uphold her placement on its Preclusion List.***

Petitioners do not dispute that Dr. Kapon, as a physician, was the owner and managing employee of her practice. *See* CMS Ex. 12 at 14.  As previously discussed, the United States filed a three-count information charging that Dr. Kapon engaged in a conspiracy to solicit, receive, offer, and pay kickbacks to induce her to order tests that would be paid in whole or in part by a federal health care program (Medicare, Medicaid, or a Medicaid managed care organization), and that she received kickbacks in connection with a federal health care program. CMS Ex. 7. Petitioners do not dispute that Dr. Kapon entered a guilty plea to the offenses charged by the information, nor do Petitioners dispute that Dr. Kapon, for purposes of 42 C.F.R. § 424.535(a)(3), has felony convictions within the previous 10 years.  P. Br. at 4. Rather, Petitioners dispute CMS’s determinations that Dr. Kapon’s offenses were detrimental to the best interests of the Medicare program and its beneficiaries. P. Br. at 7-14.

**Page 8**

The Departmental Appeals Board (DAB) has held “that CMS may revoke a . . . supplier’s billing privileges based solely on a qualifying felony conviction, without regard to equitable or other factors.” *Brian K. Ellefsen, DO,* DAB No. 2626 at 9 (2015).  The DAB has also explained that CMS may revoke enrollment and billing privileges based solely on a qualifying felony conviction it has determined by regulation to be detrimental to the best interests of the Medicare program and its beneficiaries.  *See Fady Fayad, M.D.,* DAB No. 2266 at 15-16 (2009),*aff’d Fayad v. Sebelius,* 803 F.Supp. 2d 699 (E.D. Mich. 2011); *see*42 C.F.R. § 424.535(a)(3).

In explaining how it would determine whether an offense is detrimental to the best interests of the Medicare program and its beneficiaries, CMS noted, in the Final Rule adding that provision to section 424.535(a)(3), that “[t]he determination of whether a particular conviction will or will not result in the revocation or denial of Medicare enrollment will depend upon the specific facts of each individual situation.”  79 Fed. Reg. 72,500, 72,510 (Dec. 5, 2014). CMS explained:

We believe that the term “determines” makes clearer that the lists of felonies in these two provisions are not exhaustive and include other felonies that CMS may deem as meeting the “detrimental” standard based on the particular facts of the case.  Second, and to further emphasize CMS’ discretion to use felonies other than those specified in §§ 424.530(a)(3) and 424.535(a)(3) as grounds for denial or revocation, we have included the phrase “but are not limited in scope or severity” within both provisions.

However, notwithstanding these changes, we again stress that we will only exercise our authority under §§ 424.530(a)(3) and 424.535(a)(3) after very careful consideration of the relative seriousness of the underlying offense and all of the circumstances surrounding the conviction.  It should in no way be assumed that every felony conviction will automatically result in a denial or revocation.

*Id.* at 72,511-12.  In stating such, CMS indicated that if a felony offense was not specifically enumerated in the list at 42 C.F.R. § 424.535(a)(3)(ii)(A)-(D), it would make a case-specific determination whether the offense was detrimental to the best interests of the Medicare program and its beneficiaries. *Id.*

The DAB has explained that it “has repeatedly held that if the conviction is for a crime other than one of the enumerated felonies, CMS may make the determination, on a case by-case basis, whether the felony conviction at issue is detrimental to the Medicare program and its beneficiaries.”  *Brenda Lee Jackson,*DAB No. 2903 at 8 (2018).  The

**Page 9**

DAB has also explained that “[t]he ALJ’s . . . role in an appeal of CMS’s . . . revocation of enrollment in the Medicare program is to determine whether CMS had a legal basis for its action” and “[i]f it did, then [the ALJ is] bound to affirm the . . . revocation.”  *Dr. Robert Kanowitz,*DAB No. 2942 at 4 (2019).  The DAB has further discussed that “the right to review of CMS’s determination by an ALJ serves to determine whether CMS had the authority to revoke [the petitioner’s] Medicare billing privileges, not to substitute the ALJ’s discretion about whether to revoke.”  *Letantia Bussell, M.D.,*DAB No. 2196 at 13 (2008) (emphasis omitted).  As such, the scope of my review is whether CMS had a legitimate basis to revoke Petitioners’ enrollment and billing privileges, and not whether I would make the same determination in the first instance.

Not only do Petitioners concede that Dr. Kapon has felony convictions for conspiracy to solicit, receive, offer and pay kickbacks in connection with a federal health care program and receiving kickbacks in connection with a federal health care program, Petitioners also concede that another physician “paid Dr. Kapon Fifteen Dollars ($15.00) per referral to his laboratory.”  P. Br. at 4.  Petitioners further acknowledge that “[a]pproximately ninety (90%) of Dr. Kapon’s patients in her private medical practice were Medicaid participants.”  P. Br. at 2 n.1.  There is no dispute that Dr. Kapon engaged in a conspiracy to solicit and receive kickbacks and received kickbacks in connection with a federal health care program.

Petitioners unpersuasively argue that Dr. Kapon’s criminal offenses are not detrimental to the best interests of the Medicare program and its beneficiaries.  These arguments are largely premised on the flawed belief that Dr. Kapon somehow did not know it was wrong, much less illegal, to arrange for and receive kickbacks in exchange for referring patients for tests that would be paid for federal health care programs. Petitioners claim that Dr. Kapon, as the first member of her family to attend medical school, “did not have the guidance of close family members to serve as mentors or provide advice.”6
 P. Br. at 2. Such a claim is not only an affront to any law-abiding first-generation graduate of an advanced or professional degree program, but also eschews personal responsibility for years of felonious conduct. A physician need not be taught or mentored that it is wrong to arrange a scheme that would pay kickbacks as an inducement for ordering tests. *See* CMS Ex. 7 at 3.  And to the extent Petitioners argue that Dr. Kapon was naïve and “had a lack of knowledge about federal kickback laws” (P. Br. at 11), Dr. Kapon admitted guilt to a charge that she had enriched herself through her participation in the conspiracy.  CMS Ex. 7 at 3-4.  Regardless of whether Dr. Kapon knew she was violating

**Page 10**

18 U.S.C. § 371 and 42 U.S.C. § 1320a-7b(b)(1)(B), she should have had no difficulty smelling the stench of an illegal scheme.

Although CMS provided myriad reasons in support of why Dr. Kapon’s criminal conduct was detrimental to the best interests of the Medicare program and its beneficiaries, CMS simplistically recognized that “the unique facts and circumstances of the offenses” demonstrated that the conduct was detrimental to the best interests of the Medicare program and its beneficiaries.7
 CMS Exs. 1 at 4-5; 2 at 4-5.  CMS correctly determined that conspiring to solicit and receive kickbacks, and receiving kickbacks, in connection with federal health care programs is “dishonest behavior” and evidences “lack of good judgment.”  CMS Exs. 1 at 5; 2 at 5.  Further, CMS correctly determined that such conduct “reflects negatively on Dr. Kapon’s ethics and professionalism as a physician,” and that as a physician, owner, and sole managing employee of a practice, Dr. Kapon could not be trusted to abide by the rules expected of Medicare partners. CMS Exs. 1 at 5; 2 at 5.

In the context of evaluating enrollment in Medicare, a large government program that makes payments to suppliers based on their claims that they have provided items or services to its beneficiaries, Dr. Kapon was convicted of serious felonies directly involving her work as a physician. Dr. Kapon ordered tests that were paid for by the Medicare and Medicaid programs, and she admitted guilt to charges that the kickbacks “induce[d]” her to order those tests and that she was financially “enrich[ed]” when she received the kickbacks. CMS Ex. 7 at 3-4; *see* CMS Exs. 8 at 1 (entry of a guilty plea to Counts 1, 2, and 3 of the information); 10 (Dr. Kapon “knowingly, intelligently, and voluntarily entered a plea of guilty to Counts 1, 2, and 3 of the [information]”).  While the passage of a decade will not necessarily make Dr. Kapon any more trustworthy, CMS has determined that 10 years, in a circumstance such as this one, is the length of time it may prohibit such an individual (or a medical practice that is owned or managed by such an individual) from enrolling in the Medicare program. *See* 42 C.F.R. §§ 424.530(a)(3), 424.535(a)(3). CMS had a legitimate basis to determine that the offenses of conspiracy to receive kickbacks and receiving kickbacks in connection with a federal health care program are detrimental to the best interests of the Medicare program and its beneficiaries, and CMS was therefore authorized to revoke Petitioners’ Medicare enrollment and billing privileges pursuant to section 424.535(a)(3). *See Lilia Gorovits, M.D., P.C.,* DAB No. 2985 at 13 (2020) (determining that admitted conduct of receiving kickbacks for referring Medicare and Medicaid beneficiaries to hospice “buttresses the conclusion that [the petitioner] was not a trustworthy practitioner and the conviction was detrimental to Medicare and Medicare beneficiaries.”).

**Page 11**

Based on its consideration of the regulatory factors set forth in 42 C.F.R. §§ 422.2 and 423.100, CMS had a legitimate basis to uphold Dr. Kapon’s placement on the Preclusion List. Other than disputing that her offenses were detrimental to the Medicare program, Dr. Kapon does not offer any other arguments why she should not be placed on the Preclusion List. Because Dr. Kapon’s felony offenses were detrimental to the Medicare program, CMS appropriately considered whether Dr. Kapon should be placed on the Preclusion List. 42 C.F.R. §§ 422.2, 423.100.

In assessing a placement on the Preclusion List pursuant to 42 C.F.R. §§ 422.2 and 423.100, CMS is required to consider the factors of severity, when the offense occurred, and any other information it deems relevant to its determination. Addressing the first factor of the severity of the offense, CMS determined that Dr. Kapon’s conduct was “incredibly severe,” as evidenced by the fact that the Medicare and Medicaid programs bore the costs of Dr. Kapon’s referrals-for-kickbacks scheme. CMS Ex. 1 at 6.  CMS also correctly determined that Dr. Kapon’s continued participation “presents serious risks to the integrity of the Medicare program.” CMS Ex. 1 at 6. I agree with this conclusion; a physician who is willing to engage in a scheme in which she is induced to order tests in exchange for kickbacks has committed severe offenses that strike at the core of the trust Medicare places in its participating providers and suppliers.

In assessing the second factor, CMS determined that Dr. Kapon engaged in the criminal scheme from March 2014 through January 2017. Dr. Kapon’s crime was not a fleeting aberration from an otherwise honest practice, but rather, a lengthy and years-long course of criminal conduct.

And finally, I agree with CMS that Dr. Kapon’s conspiracy to receive and receipt of kickbacks in connection with a federal health care program “negatively affects the integrity of the Medicare program.” Dr. Kapon has not offered any rebuttal to CMS’s consideration of this factor or any other factors.

Based on its consideration of the regulatory factors set forth in 42 C.F.R. §§ 422.2 and 423.100, CMS had a legitimate basis to uphold Dr. Kapon’s placement on the Preclusion List.

**Page 12**

V. Conclusion

I affirm the revocation of Petitioners’ Medicare enrollment and billing privileges and placement of Dr. Kapon on CMS’s Preclusion List.


          /s/
        Leslie C. Rogall

                      Administrative Law Judge
      1. Both offenses charged in the information are felony offenses. See 42 U.S.C. § 7b(b)(1)(B) (listing a maximum period of incarceration of 10 years); 18 U.S.C. § 371 (listing a maximum period of incarceration of five years if the offense underlying the conspiracy is a felony offense); see also 18 U.S.C. § 3559 (classifying offenses punishable by more than one year of incarceration as felony offenses). back to note 1
                      2. The information listed Medicare, Medicaid, and Medicaid managed care organizations as the federal health care programs. CMS Ex. 7 at 3. back to note 2
                      3. Petitioners reported that Dr. Kapon will be sentenced in February 2022. Petitioners’ Brief (P. Br.) at 4. back to note 3
                      4. As an in-person hearing to cross-examine witnesses is not necessary, it is unnecessary to further address CMS’s motion for summary judgment. back to note 4
                      5. My findings of fact and conclusions of law are in bold and italics. back to note 5
                      6. Petitioners also argue that a co-conspirator “preyed on Dr. Kapon’s relative inexperience to include her in his felonious conduct.” P. Br. at 13. I note that Dr. Kapon reported on her enrollment application that she had graduated from medical school in 2006 and became board-certified in 2011. CMS Ex. 12 at 7. back to note 6
                      7. Although I agree with CMS that Dr. Kapon’s offenses are akin to the enumerated offenses listed in 42 C.F.R. § 424.535(a)(1)(ii)(D), I have opted, for the sake of administrative efficiency, to address these offenses under a case-specific analysis. back to note 7 Back to top
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