$05:Exclusion Case
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In the Case of: Lila V. Nevrekar, M.D., Petitioner,
- v. -
The Inspector General.
DATE: June 1, 1994
Docket No. C-94-027
Decision No. CR319
DECISION
By letter dated September 21, 1993, Lila V. Nevrekar, M.D., the
Petitioner herein, was notified by the Inspector General (I.G.),
U.S. Department of Health & Human Services (HHS), that it had been
decided to exclude her for a period of five years from
participation in the Medicare, Medicaid, Maternal and Child Health
Services Block Grant and Block Grants to States for Social Services
programs. The I.G.'s rationale was that exclusion, for at least
five years, is mandated by sections 1128(a)(1) and 1128(c)(3)(B) of
the Social Security Act (Act) because Petitioner had been convicted
of a criminal offense related to the delivery of an item or service
under Medicaid.
Petitioner filed a timely request for review of the I.G.'s action,
and the I.G. moved for summary disposition.
Because I have determined that there are no facts of decisional
significance genuinely in dispute, and that the only matters to be
decided are the legal implications of the undisputed facts, I have
decided the case on the basis of the parties' written submissions
in lieu of an in-person hearing.
I affirm the I.G.'s determination to exclude Petitioner from
participation in the Medicare and Medicaid programs for a period of
five years.
APPLICABLE LAW
Sections 1128(a)(1) and 1128(c)(3)(B) of the Act make it mandatory
for any individual who has been convicted of a criminal offense
related to the delivery of an item or service under Medicare or a
State health care program to be excluded from participation in such
programs for a period of at least five years. The definition of
what constitutes a "State health care program" is contained at
section 1128(h) of the Act, and it includes the Medicaid program.
FINDINGS OF FACT AND CONCLUSIONS OF LAW (FFCLs) 1/
1. It is undisputed that, during the period relevant to this
case, Petitioner was a physician, practicing in Oklahoma, and was
a Medicaid provider.
2. On January 11, 1993, Petitioner was charged, in an
Information, with the offense of Medicaid fraud. I.G. Ex. 1.
3. The Information alleged that Petitioner willfully submitted or
caused to be submitted false claims for reimbursement to the
Oklahoma Medicaid program in the aggregate amount of $8495. I.G.
Ex. 1.
4. On January 21, 1993, Petitioner pled guilty in an Oklahoma
court to Medicaid fraud, as alleged in the Information. I.G. Ex.
2.
5. On March 5, 1993, pursuant to a plea agreement negotiated by
Petitioner's counsel and the prosecution, the Oklahoma court levied
a fine on Petitioner equal to approximately twice the sum she had
obtained from Medicaid through fraud -- she had already made
restitution of the amount taken -- and imposed a "deferred"
sentence on her. I.G. Ex. 2; Petitioner's letter requesting
hearing (Request for hearing).
6. In Oklahoma, a deferred sentence is a discretionary device
available to the courts following a guilty plea or verdict, but
before judgment of guilt is entered, whereby the court can suspend
its proceedings while a defendant has the opportunity to satisfy
conditions imposed by the court. Upon successfully satisfying the
conditions imposed by the court, the defendant is discharged
without a court judgment of guilt, the verdict or plea of guilty is
expunged from the record, and the charge is dismissed. P. Br. at
5 - 9; I.G. Br. at 5 - 9.
7. Petitioner's sentencing was deferred until March 4, 1996. The
requirements imposed by the court were that, in the intervening
years, Petitioner was to pay her fine and to pay certain
assessments. The court informed Petitioner that the sentencing
date could be accelerated and judgment and sentence imposed on her
plea of guilty if she unlawfully possessed narcotics, associated
with convicted felons, or violated any city, State, or federal
laws. I.G. Ex. 2.
8. The undisputed facts fail to establish that Petitioner was
convicted within the meaning of section 1128(i)(1) of the Act.
9. The undisputed facts fail to establish that Petitioner was
convicted within the meaning of section 1128(i)(2) of the Act.
10. A plea is accepted within the meaning of section 1128(i)(3) of
the Act whenever a party offers a plea and a court consents to
receive it as an element of an arrangement to dispose of a pending
criminal matter.
11. The Oklahoma court fined Petitioner and imposed certain other
conditions upon her based on its acceptance of Petitioner's guilty
plea. FFCL 4 - 7.
12. Petitioner was convicted of a criminal offense within the
meaning of section 1128(i)(3) of the Act. FFCL 11.
13. Petitioner's description of how deferred adjudication works in
her jurisdiction discloses that this program is precisely the sort
that Congress believed should be encompassed by the mandatory
exclusion law. Request for hearing; P. Br. at 4 - 9.
14. Petitioner was convicted of a criminal offense within the
meaning of section 1128(i)(4) of the Act. FFCL 13.
15. The offense of which Petitioner was convicted -- filing
fraudulent Medicaid claims -- is related to the delivery of items
or services under Medicaid within the meaning of section 1128(a)(1)
of the Act.
16. The Secretary delegated to the I.G. the authority to
determine, impose, and direct exclusions pursuant to section 1128
of the Act. 48 Fed. Reg. 21662 (1983).
17. By letter dated September 21, 1993, the I.G. excluded
Petitioner, pursuant to section 1128(a)(1) of the Act, for a period
of five years.
18. The I.G. properly excluded Petitioner for a period of five
years as required by the minimum mandatory exclusion provision of
section 1128(c)(3)(B) of the Act. FFCL 2 - 16.
19. I do not have the authority or discretion to reduce the five
year minimum exclusion mandated by section 1128(c)(3)(B) of the
Act.
20. The five-year exclusion imposed and directed by the I.G. does
not violate the Double Jeopardy Clause of the United States
Constitution.
In Petitioner's letter requesting a hearing, she requested a waiver
of the exclusion. During the prehearing conference call on
December 10, 1993, the I.G. contended that I did not have
jurisdiction over Petitioner's request for a waiver. I agreed with
the I.G. and so informed the parties. Order and Schedule for
Filing Briefs and Documentary Evidence, dated December 20, 1993. 2/
PETITIONER'S ARGUMENT
Petitioner contends that the erroneous bills sent by her office to
Medicaid resulted from clerical errors by her employees, rather
than any criminality on her part. She pled guilty only because of
her fear of the expense and uncertainty of a trial. P. Br. at 3 -
4.
Petitioner's principal argument is legal. She states that the
imposition of a deferred sentence in Oklahoma does not constitute
a conviction. P. Br. at 5. Rather, a deferred sentence is a
discretionary device available to the courts following a guilty
plea or verdict, but before judgment of guilt is entered, whereby
the court can suspend proceedings until a defendant meets certain
conditions imposed by the court. Upon satisfying the conditions
imposed by the court, the defendant is discharged without a court
judgment of guilty, the verdict or plea of guilty is expunged from
the record, and the charge is dismissed. P. Br. at 6. Since
deferred adjudication was utilized in her case, Petitioner believes
it cannot be said that her plea was accepted -- because the court
suspended proceedings before issuing any formal acceptance -- and
that Oklahoma law clearly provides that deferred adjudication shall
not be deemed a conviction. P. Br. at 5 - 9.
DISCUSSION
I. Petitioner was convicted of a criminal offense, within the
meaning of sections 1128(i)(3) and 1128(i)(4) of the Act.
The first statutory requirement for mandatory exclusion pursuant to
section 1128(a)(1) of the Act is that the individual or entity in
question has been convicted of a criminal offense. The term
"convicted" is defined at section 1128(i) of the Act. This section
establishes four alternative definitions of the term "convicted."
An individual or entity need be convicted under only one of the
four definitions in section 1128(i) to establish that the
individual or entity was convicted of a criminal offense within the
meaning of the Act.
Section 1128(i) of the Act provides that an individual or entity
will be convicted of a criminal offense:
(1) when a judgment of conviction has been entered against the
individual or entity by a Federal, State, or local court,
regardless of whether there is an appeal pending or whether the
judgment of conviction or other record relating to criminal conduct
has been expunged;
(2) when there has been a finding of guilt against the
individual or entity by a Federal, State, or local court;
(3) when a plea of guilty or nolo contendere by the individual
or entity has been accepted by a Federal, State, or local court; or
(4) when the individual or entity has entered into
participation in a first offender, deferred adjudication, or other
arrangement or program where judgment of conviction has been
withheld.
The I.G. contends that Petitioner was convicted within the meaning
of all four definitions. I.G. Br. at 4. Petitioner contends that
she was not convicted of a criminal offense within the meaning of
the Act. 3/ I have considered the applicability of the four
alternative definitions of the term "convicted". I find that the
undisputed facts fail to establish that the definitions of
convicted set forth at sections 1128(i)(1) and (i)(2) have been met
in this case. However, I find that Petitioner was convicted within
the meaning of sections 1128(i)(3) and 1128(i)(4) of the Act.
Thus, there is more than sufficient basis for finding that
Petitioner was convicted within the meaning of the exclusion law.
Under section 1128(i)(1), an individual or entity is convicted of
a criminal offense "when a judgment of conviction has been entered
against the individual or entity by a Federal, State, or local
court, regardless of whether there is an appeal pending or whether
the judgment of conviction or other record relating to criminal
conduct has been expunged."
The document in the underlying criminal proceeding entitled
"Sentencing After Previous Plea of Guilty" recites Petitioner's
plea of guilty to the criminal indictment and defers sentencing for
three years. I.G. Ex. 2. The I.G. points out that, as a condition
for deferring sentencing, the court "imposed present duties and
obligations on [P]etitioner." In addition, the I.G. points to
language in the document advising Petitioner of her appeal rights,
which refers to appealing from "this conviction on you[r] plea of
guilty." The I.G. contends that the orders issued by the Oklahoma
court and the language referring to an appeal from "this
conviction" establish that a judgment of conviction was entered
against Petitioner within the meaning of section 1128(i)(1). I.G.
Br. at 7 - 8. I disagree.
It is true that the document cited by the I.G. imposes a fine and
other conditions on Petitioner and that it contains language
referring to Petitioner's "conviction." However, I do not find
that this establishes that a judgment of conviction was entered
against Petitioner, as the I.G. asserts. On the contrary, the
document states that, in the event that Petitioner fails to meet
the conditions imposed on her, "[t]he sentencing date may be
accelerated and judgment(s) and sentence(s) imposed on your Plea(s)
of guilty." This language supports the conclusion that not only
was the Oklahoma court deferring sentencing, but it also was
deferring entry of a judgment of conviction against Petitioner.
Moreover, Petitioner states that the statutory basis for the
deferred sentencing procedure employed by the Oklahoma court in
this case is found at 22 Oklahoma Statutes 991c, which provides:
Upon a verdict or plea of guilty or upon a plea of nolo
contendere, but before a judgment of guilt, the Court may, without
entering a judgment of guilt, and with the consent of the
defendant, defer further proceedings . . .
This statutory language explicitly provides that an Oklahoma court
will defer proceedings "without entering a judgment of guilt."
Thus, it appears that the statutory scheme which provides for the
deferred sentencing procedure utilized by the Oklahoma court in
this case contemplates that the proceedings will be deferred before
the court formally enters a judgment against a defendant. In view
of the foregoing, I conclude that the Oklahoma court not only
deferred sentencing in this case, but it also deferred entry of a
judgment of conviction. Since the Oklahoma court withheld judgment
of conviction in this case, I find that Petitioner was not
convicted within the meaning of section 1128(i)(1).
Pursuant to section 1128(i)(2), an individual or entity is
considered to be convicted of a criminal offense when "there has
been a finding of guilt against the individual or entity by a
Federal, State, or local court." Although the I.G. made the broad
assertion that Petitioner was convicted of a criminal offense under
each of the subsections of section 1128(i) of the Act, she did not
make any specific arguments regarding the applicability of section
1128(i)(2) to this case. The I.G. does not point to anything in
the record of the court proceedings showing that the Oklahoma court
made a finding of guilt. Moreover, the I.G. has not pointed to
anything in the relevant Oklahoma statute which requires the
Oklahoma court to make an explicit finding of guilt before it
defers sentencing. Accordingly, I conclude that the I.G. has
failed to support her contention that the Oklahoma court made a
finding of guilt against Petitioner within the meaning of section
1128(i)(2) of the Act.
Under section 1128(i)(3), an individual or entity is convicted of
a criminal offense "when a plea of guilty or nolo contendere by the
individual or entity has been accepted by a Federal, State, or
local court." The event described by section 1128(i)(3) as
constituting a conviction is the acceptance of a plea. The term
"accept" is not specifically defined in section 1128(i)(3).
However, it is well settled law that a plea is accepted within the
meaning of section 1128(i)(3) whenever a party offers a plea and a
court consents to receive it as an element of an arrangement to
dispose of a pending criminal matter. Robert W. Emfinger, R.Ph.,
DAB CR92 (1990).
In the case at hand, Petitioner admitted committing the offense
with which she was charged. The court, acting only because of such
admission, fined Petitioner, imposed certain other conditions upon
her, and, in essence, assured her of the opportunity to have the
charges dismissed after she satisfies those conditions. This
pattern of facts indicates that the court "accepted" Petitioner's
guilty plea, thus establishing that Petitioner was convicted within
the meaning of section 1128(i)(3) of the Act.
Petitioner contends that, under Oklahoma law, the Oklahoma court
did not "accept" the plea of guilty, but instead "merely decided
to
hold the case in abeyance for three years." Petitioner argues that
the Oklahoma court "neither accepted no[r] rejected" her guilty
plea, but instead "simply declined to rule on the matter at this
time." P. Br. at 6. According to Petitioner, if she does not
violate the law within the three-year period, the court will
dismiss the case against her and will order that all the records
involving the proceedings against her be expunged. Petitioner
argues that, since Oklahoma law provides for the automatic
dismissal and complete expungement of the record upon successful
completion of the probationary period, the Oklahoma law
contemplates a "true deferral without acceptance of the guilty
plea." P. Br. at 7 - 8.
I disagree with Petitioner's contention that the Oklahoma court's
determination to defer entering a formal judgment of guilt meant
that the court did not accept Petitioner's guilty plea within the
meaning of section 1128(i)(3). Petitioner offered a guilty plea in
order to dispose of the criminal charges against her. She offered
a guilty plea in exchange for the requirement that she satisfy
conditions imposed by the court and the opportunity to have the
charges dismissed after she satisfies those conditions. The
Oklahoma court determined that Petitioner's guilty plea was an
acceptable basis to dispose of criminal charges in the context of
that particular case, and it proceeded to impose a fine and impose
certain conditions on Petitioner. The statutory definition of
acceptance was met when Petitioner offered to plead guilty and the
court fined Petitioner and imposed certain other conditions on her
based on its acceptance of the guilty plea.
The language of section 1128(i)(3) is plain and without qualifying
terms. There is no language in that section which states or
suggests that the definition of conviction is qualified or limited
by judicial actions taken subsequent to acceptance of the plea.
The fact that the Oklahoma court will automatically dismiss the
charges against Petitioner upon satisfying the conditions imposed
by the court does not derogate from my conclusion that the court
accepted Petitioner's guilty plea within the meaning of section
1128(i)(3).
I recognize that, in a case involving a nolo contendere plea before
a Utah court, a federal district court refused to find that the
plea had been accepted within the meaning of section 1128(i)(3).
Travers v. Sullivan, 791 F. Supp. 1471 (E.D. Wash. 1992). However,
the facts of the present case differ from Travers. The court in
Travers based its conclusion that the plea in question was never
accepted on the fact that the Utah court expressly took the plea
under advisement.
I read narrowly the Travers court's finding regarding the
applicability of section 1128(i)(3). I construe Travers to stand
for the proposition that a plea is not accepted within the meaning
of section 1128(i)(3) in the limited circumstances where a court
expressly takes a plea under advisement. In the instant case, the
Oklahoma court did not expressly take the plea under advisement.
I recognize that the Oklahoma court deferred entering a formal
judgment of guilt and deferred sentencing Petitioner, but I do not
find that this is tantamount to expressly taking the plea under
advisement.
I conclude also that the disposition of Petitioner's criminal case
constitutes entry into a deferred adjudication program within the
meaning of section 1128(i)(4) of the Act. Therefore, even if
Petitioner's guilty plea had not been accepted by the Oklahoma
court within the meaning of section 1128(i)(3), Petitioner would be
convicted within the meaning of section 1128(i)(4) of the Act. It
is noteworthy that although the federal district court in Travers
found that Travers was not convicted within the definition of
section 1128(i)(3) because the court had not accepted Petitioner's
plea of guilty, the court did find that Travers was convicted under
section 1128(i)(4). Travers appealed the finding that he had been
convicted under section 1128(i)(4), and the court of appeals upheld
the district court's finding on this issue. Travers v. Shalala,
No. 92-36658, 1994 WL 103086 (9th Cir. March 31, 1994).
Under section 1128(i)(4), an individual or entity is convicted of
a criminal offense "when the individual or entity has entered into
participation in a first offender, deferred adjudication, or other
arrangement or program where judgment of conviction has been
withheld." It is clear from the explicit language of section
1128(i)(4) that Congress intended to require the mandatory
exclusion of guilty individuals whose criminal prosecutions were
diverted into first offender or deferred adjudication programs.
Douglas L. Reece, D.O., DAB CR305 (1994) (decision on remand).
Petitioner's description of how deferred adjudication works in her
jurisdiction discloses that her program is precisely the sort that
Congress believed should be encompassed by the mandatory exclusion
law. P. Br. at 4 - 9. The unequivocal provisions of section
1128(i)(4) make Petitioner's involvement in this program an
independent basis for regarding her as having been convicted of a
criminal offense.
This conclusion is consistent not only with the plain meaning of
section 1128(i)(4), but also with congressional intent, as
expressed through legislative history. The congressional committee
charged with drafting the 1986 amendments to the statute stated:
The principal criminal dispositions to which the exclusion
remedy [currently] does not apply are the "first offender" or
"deferred adjudication" dispositions. It is the Committee's
understanding that States are increasingly opting to dispose of
criminal cases through such programs, where judgment of conviction
is withheld. The Committee is informed that State first offender
or deferred adjudication programs typically consist of a procedure
whereby an individual pleads guilty or nolo contendere to criminal
charges, but the court withholds the actual entry of a judgment of
conviction against them and instead imposes certain conditions of
probation, such as community service or a given number of months of
good behavior. If the individual successfully complies with these
terms, the case is dismissed entirely without a judgment of
conviction ever being entered.
These criminal dispositions may well represent rational
criminal justice policy. The Committee is concerned, however, that
individuals who have entered guilty or nolo [contendere] pleas to
criminal charges of defrauding the Medicaid program are not subject
to exclusion from either Medicare or Medicaid. These individuals
have admitted that they engaged in criminal abuse against a Federal
health program and, in the view of the Committee, they should be
subject to exclusion. If the financial integrity of Medicare and
Medicaid is to be protected, the programs must have the prerogative
not to do business with those who have pleaded to charges of
criminal abuse against them.
H.R. Rep. No. 727, 99th Cong., 2d Sess. 75 (1986), reprinted in
1986 U.S.C.C.A.N. 3607, 3665.
The committee added:
With respect to convictions that are "expunged," the Committee
intends to include all instances of conviction which are removed
from the criminal record of an individual for any reasons other
than the vacating of the conviction itself, e.g., a conviction
which is vacated on appeal.
Id. Congress intended to exclude from Medicare and Medicaid
programs those who entered into first offender or deferred
adjudication programs. More importantly, the legislative history
reveals Congress' strong desire to protect the Medicare and
Medicaid programs from untrustworthy providers. I find that the
arrangement entered into by Petitioner falls squarely within the
kind of arrangements which the committee responsible for drafting
the law sought to include within the ambit of section 1128(i)(4) of
the Act.
Petitioner argues that "[u]nder Oklahoma law, the imposition of a
deferred sentence does not constitute a conviction." P. Br. at 5.
Congress has defined what the term "convicted" means for purposes
of section 1128 of the Act. Section 1128 is a federal statute. It
defines a conviction independently from the definitions or
interpretations applied by states. It is not relevant that an
action might not constitute a conviction within the meaning of
State law so long as the action meets the federal definition of
conviction.
Congress defined conviction to include a deferred adjudication for
purposes of exclusion under section 1128 of the Act. The
legislative history of section 1128(i) demonstrates that Congress,
being aware that persons who were involved in first offender or
deferred adjudication programs under State law were not subject to
exclusion, made a reasoned decision to change the law to protect
the integrity of the Medicare and Medicaid programs. I find that
Petitioner was convicted of a criminal offense within the meaning
of section 1128(i)(4) of the Act.
II. Petitioner was convicted of a criminal offense related to the
delivery of an item or service under the Medicaid program.
I find also that the second requirement of section 1128(a)(1) --
that the criminal offense leading to the conviction be related to
the delivery of an item or service under Medicare or Medicaid --
has been satisfied. It is well-established that financial
misconduct directed at the Medicare or Medicaid programs
constitutes a program-related offense justifying mandatory
exclusion. In particular, filing fraudulent Medicare or Medicaid
claims has been held to constitute clear program-related
misconduct. Jack W. Greene, DAB 1078 (1989), aff'd sub nom. Greene
v. Sullivan, 731 F. Supp. 835, 838 (E.D. Tenn. 1990).
Petitioner's argument that she did not intend to commit a crime
will not be considered here. She could have raised her alleged
lack of criminal intent as a defense in the State court; she cannot
relitigate her conviction in these administrative proceedings. The
law does not permit me to look behind the fact of conviction. I
have no authority to decide whether a conviction was supported by
the evidence, whether there was criminal intent, or that the
criminal conviction was tainted by legal error. Oscar Klein, M.D.,
DAB CR253, at 4 - 5 (1993).
Additionally, since the five-year exclusion imposed upon Petitioner
is the shortest period of exclusion for her offense permitted by
law, an administrative law judge cannot reduce it. Jack W. Greene,
DAB CR19, at 12 - 14 (1989).
III. An exclusion pursuant to section 1128 does not violate the
Double Jeopardy Clause.
I disagree with Petitioner's argument that her exclusion from the
Medicare and Medicaid programs is "both remedial and punitive" and
that "following imposition of a $17,000 fine, levied by the court,
constitutes double jeopardy and is violative of the Constitution of
the United States." Request for hearing.
An exclusion under section 1128(a)(1) of the Act does not violate
the Double Jeopardy Clause of the United States Constitution.
Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir. 1992); Greene, 731
F. Supp. 838, 839. These cases point out that the purpose of the
exclusion is remedial in nature, and therefore, cannot be
considered punitive under the analysis of United States v. Halper,
490 U.S. 435 (1989). The legislative history of the exclusion law
clearly demonstrates that the intent of Congress was to protect the
programs:
[T]he basic purpose of the Medicare and Medicaid Patient and
Program Protection Act is to improve the ability of the Secretary
and the Inspector General of [HHS] to protect Medicare, Medicaid,
[and other social services programs} from fraud and abuse, and to
protect the beneficiaries of those programs from incompetent
practitioners and from inappropriate or inadequate care.
S. Rep. No. 109, 100th Cong., 1st Sess. 1 - 2 (1987) reprinted in
1987 U.S.C.C.A.N. 682. An appellate panel of the Departmental
Appeals Board has held that section 1128(a) of the Act does not
contemplate a federal "prosecution" for an offense separately
defined under federal law. Thus, an exclusion under the mandatory
exclusion provision does not raise the double jeopardy concerns of
successive prosecutions by the same government based on the same
conduct. Douglas Schram, R.Ph., DAB 1372, at 15 (1992). Also, the
mandatory exclusion here involves a federal action following a
State action, where the State action is not sufficient to protect
the federal interest.
CONCLUSION
Sections 1128(a)(1) and 1128(c)(3)(B) of the Act mandate that
Petitioner herein be excluded from the Medicare and Medicaid
programs for a period of at least five years because of her
criminal conviction for filing false Medicaid claims.
The five-year exclusion is, therefore, sustained.
__________________________
Joseph K. Riotto
Administrative Law Judge
1. The I.G. submitted three exhibits. I cite the I.G.'s exhibits
as "I.G. Ex(s). (number) at (page)." I admit into evidence I.G.
Exs. 1 - 3. In her request for a hearing, Petitioner submitted
documents identified as exhibits "A" and "B." In a letter
from my
office dated November 24, 1993, counsel for Petitioner was informed
that I would not consider these documents as evidence unless they
were served on the I.G. and offered in evidence. During the
proceedings and while the record was open, Petitioner did not offer
these documents for admittance into the record. Thus, Petitioner's
exhibits are not part of the record. The I.G. submitted a motion
and brief for summary disposition to which Petitioner responded.
I cite the I.G.'s brief for summary disposition as "I.G. Br. at
(page)." I cite Petitioner's response as "P. Br. at (page)."
2. Section 1128(c)(3)(B) of the Act provides that "upon the
request of a State, the Secretary may waive the exclusion under
subsection (a)(1) in the case of an individual or entity that is
the sole community physician or sole source of essential
specialized services in a community. The Secretary's decision
whether to waive the exclusion shall not be reviewable." According
to William J. Hughes, an I.G. Investigations Analyst, as of January
18, 1994 no such request for a waiver had been made by an
appropriate State official. I.G. Ex. 3.
3. While Petitioner asserts that she was not convicted within
the meaning of the exclusion law, her arguments focus primarily on
the applicability of section 1128(i)(3) of the Act.