SUBJECT:

Tanya A. Chuoke, R.N.,

Petitioner,

The Inspector General

FINAL DECISION ON REVIEW OF

ADMINISTRATIVE LAW JUDGE DECISION

Petitioner, Tanya A. Chuoke, R.N., appealed the December 14, 1999 decision of Administrative Law Judge (ALJ) Joseph K. Riotto granting judgment on the record. Tanya A. Chuoke, R.N., DAB CR633 (1999) (ALJ Decision). The ALJ concluded that the Inspector General (I.G.) properly imposed a five-year mandatory exclusion because Petitioner was convicted of a criminal offense related to the delivery of an item or service under the Medicaid program. Petitioner argued that no record evidence established that she was convicted of an offense related to the delivery of a health care item or service under Medicaid, among other challenges to the basis of the ALJ Decision. We conclude that most of Petitioner's contentions are without merit. For the reasons discussed below, however, we find that the ALJ erred in granting summary disposition, because Petitioner raised a genuine issue of material fact as to whether the specific conviction on which the I.G. relied related to the program-related misconduct to which Petitioner admitted and for which she was indicted. Therefore, we remand the case to the ALJ for further proceedings consistent with this decision.

Background

The following discussion reflects the material facts not in dispute. Petitioner was a registered nurse (R.N.) licensed in the State of Texas and employed in 1995 at a nursing home in Aransas County. On September 2, 1995, she stole three tablets of Ritalin from a patient in the home who was a Medicaid recipient. She made a written statement admitting the theft and the surrounding circumstances. On September 20, 1996, Petitioner was indicted in cause number A-96-0061-CR in the County Court of Aransas County, Texas for possession of a controlled substance, a Class A misdemeanor. I.G. Ex. 11. The indictment recited that Tanya Ann Chuoke, on or about September 2, 1995, did "intentionally and knowingly possess Methyphenidate [i.e., Ritalin]" at a location in Aransas County. Id.

On October 28, 1997, a person identified as Tanya Ann Chuoke pled guilty to a misdemeanor charge of possession of a controlled substance in the same Texas county court in cause number 16110. I.G. Ex. 1 (also referred to herein as "the conviction"). The entire description of the offense in the conviction was as follows:

The 28^th day of October, 1997, came on for consideration the foregoing cause, wherein Tanya Ann Chuoke, Defendant, stands charged by information, for the offense of [p]ossession of a controlled substance as more fully set out in said instrument.

Id. at 1 (emphasis added). Adjudication of guilt was deferred. The court ordered payment of a $250 fine (as well as court costs and community service) and imposed six months of supervised probation. Id. at 1-2.

The I.G. sent a letter to Petitioner dated May 29, 1998 to inform Petitioner that she would be excluded from participation in Medicare, Medicaid and all federal health care programs for five years, effective 20 days thereafter, pursuant to section 1128(a)(1) of the Social Security Act (Act). That section requires the I.G. to exclude individuals who have been convicted "of a criminal offense related to the delivery of an item or service" under the named programs, including Medicaid. Section 1128(a)(1) of the Act. The basis asserted by the I.G. for Petitioner's exclusion was that Petitioner was convicted of an offense related to the delivery of a health care item or service under the Medicaid program.

Petitioner sought review of the I.G.'s action before the ALJ. The I.G. moved for summary disposition. ALJ Decision at 1-2. The ALJ concluded that no material facts were in dispute and decided the case on the written submissions without holding an in-person hearing, granting the I.G.'s subsequent motion for judgment on the record. Id. The record does not reflect whether Petitioner opposed the I.G.'s motion for summary disposition, which was heard in a telephone conference. Petitioner appealed to us from the ALJ's affirmation of the I.G.'s exclusion action.

Petitioner's Exceptions on Appeal

Petitioner excepted to the following six Findings of Fact and Conclusions of Law (FFCLs) in the ALJ Decision -

ALJ Decision at 4-6. Petitioner did not object to

FFCLs 1-3, 5-8, 10, 13-14, and 16-17; and we affirm and adopt these FFCLs without further discussion.

Petitioner's central contention was that no evidence in the record established that the conviction was one related to the delivery of a health care item or service under Medicaid. Petitioner argued that the ALJ made an unstated and ill-founded assumption that the conviction was for the same offense as the written admission and the indictment. Petitioner contended that the connection between a conviction and a program-related health care delivery is a required element of section 1128(a)(1), and that the I.G. had the burden of proof to establish it in order for summary disposition to lie against Petitioner. Petitioner further argued that certain aspects of the documents in the record raised questions about the factual basis for this assumed relationship between the indictment and the deferred adjudication order, which were not addressed by the I.G. or the ALJ.

Petitioner raised several other arguments without specifying exceptions to any other FFCLs. Petitioner argued that she had not received reasonable notice of the exclusion action and had been adversely affected by the I.G.'s delay in acting. In addition, she contended that the I.G. had failed to prove that she was, in fact, the person granted deferred adjudication. Finally, she argued that the length of the exclusion was unreasonable. She based that argument on two points: (1) she was never convicted of a felony and (2) the starting date was unfairly delayed by government inaction on the alleged conviction and government error in mailing the original notice to the wrong address.

Standard of Review

The standard of review on appeal of a disputed issue of fact is whether the ALJ decision is supported by substantial evidence on the record as a whole. The standard of review on a disputed issue of law is whether the ALJ decision is erroneous. 42 C.F.R. § 1005.21(h); see generally Lakshmi N. Murty Achalla, DAB No. 1231, at 7 (1991); Joyce Faye Hughey, DAB No. 1221, at 11 (1990).

Since the ALJ granted summary disposition, our review is whether, as a question of law, considering the record before the ALJ in the light most favorable to Petitioner, the I.G. presented evidence that precluded any genuine dispute as to a material issue of fact necessary to the I.G.'s case. David A. Barrett, DAB No. 1461, at 10, 13 (1994). This analysis is especially crucial in exclusion cases. Those who face exclusion are entitled by statute to reasonable notice and an opportunity for a hearing to the same extent as is provided in section 205(b) of the Act. Section 1128(f) of the Act. Inappropriate summary disposition would infringe on that statutory right.

Summary disposition should have been denied because Petitioner raised a factual dispute about whether the I.G. proved she was convicted of an offense connected with health care delivery.

This case comes to us in the posture that the ALJ granted the I.G.'s motion for summary disposition and decided the case without affording Petitioner an opportunity for an in-person hearing. The explanation given by the ALJ for granting the I.G.'s motion was that the ALJ had determined that no material and relevant factual issues were in dispute. ALJ Decision at 1-2. The Board's prior decisions make clear that, in making this determination, the ALJ was required to consider the record in the light most favorable to the non-moving party, here the Petitioner. For example, in Barrett, the Board held as follows:

The Board has held that to succeed in a motion for summary disposition the moving party must put forth evidence on each material element of its case and that the evidence must be clear and not subject to conflicting interpretation. Robert C. Greenwood, DAB 1423, at 2 (1993); Thelma Walley, DAB 1367, at 5-7. The I.G. has the burden of proof on each element of an exclusion case. Additionally, as we explained in Walley, courts are in unanimous agreement that a party moving for summary disposition -

has the initial burden of showing the absence of any genuine issue as to all the material facts which, under applicable principles of substantive law, entitle that party to judgment as a matter of law. If the documents before the court fail to establish clearly that there is no genuine issue as to any material fact, the motion must be denied.

Id. at 6 (citation omitted).

DAB No. 1461, at 10. Petitioner's exceptions require us to review whether the ALJ properly applied this standard in ruling on the I.G.'s motion for summary disposition.

Petitioner's central contention is that insufficient evidence was offered to support the ALJ's implicit assumption that the facts underlying the investigatory report, admissions, and indictment, all of which refer to her conduct on September 2, 1995 at the nursing home, also related to the conviction entered against her on October 28, 1997.⁽¹⁾ There is no question that the record fully established that Petitioner admitted, and was criminally charged for, stealing Ritalin from a Medicaid patient at the nursing home on that date. Nor is there any dispute that a conviction for that conduct would be related to delivery of a health care item or service under Medicaid. The I.G. did not dispute that she bore the burden of proof as to each of the elements required to establish that section 1128(a)(1) applied here. 42 C.F.R. § 1005.15(b). Finally, it is not disputed that whether Petitioner's conviction was related to the delivery of an item or service under Medicaid is a necessary element under section 1128(a)(1). See Catherine L. Dodd, R.N., DAB No. 1345, at 4-5 (1992). Thus, the remaining question is whether the I.G. proved that the conviction was based on the Petitioner's admitted misconduct on September 2, 1995.

The ALJ in his decision and the I.G. in her briefing relied on the principle that extrinsic evidence (outside the immediate court documents showing the conviction) is admissible to prove surrounding facts and circumstances to discern whether a connection exists between the conviction and delivery of an item or service under a covered health-care program. See ALJ Decision at 7-8; I.G. Br. at 9-10. Indeed, the admissibility of such evidence is well-established by prior Board decisions. See, e.g., Berton Siegel, D.O., DAB No. 1467 (1994); Carolyn Westin, DAB No. 1381 (1993); DeWayne Franzen, DAB No. 1165 (1990).

However, the ALJ and the I.G. failed to address whether the extrinsic evidence offered here had anything to do with the actual conviction. Clearly, the only extrinsic evidence relevant to determining this question is that which clarifies the basis for the conviction on which the I.G. relied rather than merely relating to some other misconduct of Petitioner, however egregious. Even evidence of the basis for an indictment for a program-related offense related to health care delivery is irrelevant unless it resulted in the conviction on which the I.G. then relied. Thus, as the Board noted in a prior case dealing with a conviction under section 1128(a)(2), "it is not sufficient to show that Petitioner was charged with a criminal offense 'relating to . . . abuse of patients .' . . . Instead, it must be established that Petitioner was convicted of such an offense." Bruce Lindberg, DAB No. 1280, at 7 (1991); see also Bruce Lindberg, DAB No. 1386 (1993)(appeal from remand). The I.G. responded to Petitioner's argument here with a bald assertion that the indictment was the basis for the conviction, citing only to the indictment itself to support this claim. I.G. Br. at 5.⁽²⁾ The content of the indictment cannot demonstrate by itself that a later conviction resulted from that particular indictment and no other, without more. The I.G. did not offer anything more to show that the conviction in the record was tied to the indictment or the events that led to the indictment.

We have previously upheld dismissal of a mandatory exclusion by an ALJ in an analogous situation where extrinsic evidence plainly showed an allegation of program-related misconduct, but the link between that misconduct and the actual conviction was not established by record evidence. In that case, the charge referred to false entries about multiple patients, but the resulting conviction did not make clear which particular false entries as to which particular patient(s) formed the basis of the single count to which Petitioner pled. An investigatory report and a written voluntary admission were in the record as well, but again they did not establish which of the multiple false entries resulted in the ultimate conviction. The ALJ dismissed the I.G.'s exclusion, finding that the I.G. had failed to prove that the conviction was for an offense related to delivery of a program-related health care item or service because no evidence established the identity of or payor for the victim of the offense for which Petitioner was actually convicted,. Catherine L. Dodd, R.N., DAB CR184 (1992), aff'd DAB No. 1345 (1992).

Undoubtedly, some evidence in the record in the present case does support an inference that the conviction was based on the incident of September 2, 1995 to which the indictment refers. For example, the offenses named in the indictment and in the conviction both constituted misdemeanor possession of a controlled substance. The conviction occurred after the indictment. The attestation by the clerk of the court stated that both documents came from the case file for cause number 16110 (the cause number under which Petitioner was convicted). I.G. Ex. 11, at 3. The conviction occurred in the court of the same county where the nursing home was located and where Petitioner had been indicted.

On the other hand, ambiguities remain in the record. For example, why is the conviction dated more than a year after the indictment? Why does the indictment have a different cause number than the cause number of the conviction?⁽³⁾ Why would the conviction have referred to an "information" if the reference was intended to be to an indictment? Why is there no instrument denominated an information in the file for cause 16110, given that the conviction recites no facts about the offense except by referring to an "information"?⁽⁴⁾ Without such an information clearly associated with the conviction, there are no specifics, such as the drug involved, the location of the offense, or the date of the offense, any of which could help tie it to the September 2, 1995 events at the nursing home, and therefore to a health care delivery under Medicaid.

Furthermore, some evidence in the record could be interpreted as supporting Petitioner's allegation that the conviction is not necessarily related to that particular episode. For example, the I.G. submitted a criminal investigation report that states that Ms. Chuoke admitted to her former supervisor that she had had a "problem in the past with Ritalin" and recites statements by a former co-worker about another incident with missing Ritalin that occurred earlier in 1995. I.G. Ex. 2, at 4. Given her history of drug dependence and incidents of misconduct unrelated to the September 2, 1995 episode, it is plausible that a particular conviction of Petitioner is not necessarily connected to an indictment over a year earlier.

The point is not that these questions and evidentiary conflicts demonstrate convincingly that the conviction is unrelated to the September 2nd episode and the indictment based on it. The point is that, looking at the record evidence in the light most favorable to the party opposing summary disposition, a genuine issue of material fact remains in dispute. As noted, the correct standard to apply in deciding the motion for summary disposition was whether the evidence presented by the party with the burden of proof on a factual issue necessary to its case precluded any genuine issue of material fact remaining for resolution.⁽⁵⁾ That being the case, the ALJ here was obligated to deny the motion for summary disposition and provide further proceedings, either an in-person hearing or, at the least, an opportunity for a proffer from Petitioner and the I.G. to determine whether an in-person hearing would assist in resolving the disputed issue.

The process followed below is particularly troubling since no record was preserved of Petitioner's position at the preliminary conference when the I.G.'s motion for summary disposition was heard. The order memorializing the results of that conference and announcing that the case would be disposed of without an in-person hearing did not describe Petitioner's position or explain why any arguments she may have offered were rejected. Order at 2, dated June 22, 1999. The record does not include a tape or transcript of the preliminary conference. As a result, the record does not reflect whether she fully articulated then the factual issues which she disputed or her basis for disputing them. The I.G. later moved for judgment on the record. I.G.'s Motion for Judgment, dated August 26, 1999. Thereafter, Petitioner's briefs clearly raised the issues now before us on appeal, including the question of the factual connection between the indictment and conviction. Nevertheless, the ALJ did not revisit his decision to proceed by summary disposition. Furthermore, as to that particular issue, the ALJ provided no clear statement in the decision as to why he concluded that the I.G. had presented sufficient proof in response to Petitioner's arguments. Cf. ALJ Decision at 1-2. Hence, we cannot determine whether the ALJ drew inferences based on his interpretation of the evidence of record, from which he concluded that the gap between the conviction and the program-related misconduct had been bridged, or if he simply failed to focus on that factual aspect of the dispute.

We therefore remand to the ALJ to reopen the record and receive further evidence on the material fact as to which we have found Petitioner raised a genuine dispute. The ALJ may schedule a hearing, or require a proffer from the parties, or permit additional documentary submissions, as necessary to create a sound record on which to resolve the factual dispute.

The ALJ reasonably inferred that Petitioner was the person convicted in the order of deferred adjudication.

Petitioner also objected to the ALJ's conclusion, as embodied in FFCLs 9 and 11, that she was the individual convicted in the order of deferred adjudication on which the I.G. relied. Petitioner Br. at 3. Before the ALJ, Petitioner argued that no document established that she was the person so adjudicated and that the I.G. had the burden of proving the identity of the convicted person. She also pointed out that a fingerprint was on the order "for that specific purpose" and argued that the government had made no attempt to use it to establish identity. Petitioner Reply Br. below, at 3; see I.G. Ex. 1, at 3 (showing fingerprint).

The ALJ discussed this argument directly in his decision and drew an explicit inference that Petitioner was the convicted party. ALJ Decision at 6. He based his inference that the conviction referred to Petitioner on evidence in the record that the conviction concerned an individual with the "same name and personal circumstances as Petitioner," as well as the fact that she had essentially conceded in her March 22, 1999 request for hearing that the conviction related to her. Id.

Petitioner argued to us that the ALJ improperly relied on her request for hearing, because it was not an exhibit or part of the record of the case and was submitted by her prior to retaining counsel. Petitioner Br. at 2. This argument is without merit. The letter is indeed part of the case record, even though it was not admitted as an exhibit. The regulations expressly provide that the record for decision by the ALJ includes "all papers and requests filed in the proceeding."⁽⁶⁾ 42 C.F.R. §1005.18(c). In this instance, the contents constituted a party admission. Petitioner referred to the "deferred conviction in this case" and enclosed the order now in evidence as I.G. Exhibit 1. Request for Hearing, March 22, 1999. She went on to describe voluntary rehabilitation efforts on which she had embarked after "the Oct 1995 occurrence in question." Id. These statements together can reasonably be read as the ALJ read them, i.e., as admitting that the enclosed conviction relates to Petitioner.⁽⁷⁾ Although Petitioner suggested that the I.G. might have bolstered the evidence on this point by attempting to verify the fingerprints, the I.G. was not required to exhaust all means of supporting her case so long as she presented evidence on the record from which the ALJ could properly conclude that this necessary material fact was not genuinely disputed. Since the evidence and inferences reasonably drawn from the evidence on the question of identity were sufficient to support this conclusion, the I.G. was not obligated to take further steps to develop the record absent effective rebuttal on the part of Petitioner. Petitioner proffered no evidence to show that she was not the individual to whom the conviction related. Nothing on the face of the documents raised any doubt that she was that person, and her own letter further reinforced the identity. We deal below with other bases for Petitioner's challenge to FFCLs 9 and 11, but here conclude that, on the question of identity, the I.G. met her burden of showing that the conviction was of Petitioner.

Petitioner's further arguments as to notice and the length of her exclusion are without merit.

Petitioner further argued that the I.G.'s notice to her was defective because of unreasonable delay in excluding her. She pointed to the fact that the conviction at issue occurred in 1997, while she was not actually notified of the I.G.'s intent to exclude her until February 1999. The I.G.'s exclusion letter of May 29, 1998 allegedly failed to reach her because it was misdirected to the wrong address. Prior notice letters permitting Petitioner to respond to the I.G.'s proposed exclusion were sent to yet other addresses. See Letter from Calvin Anderson, Jr., Office of Investigations, Office of the I.G., to Petitioner, dated February 5, 1999 (reciting the problems with the I.G.'s mailings). Petitioner asserted that even if she had received timely the first of the notice letters, the I.G. action would still have begun more than two years after the offense allegedly at issue and over a year after the conviction.

Petitioner offered no argument that the delay violated any sort of "statute of limitations" in section 1128, and we find no such statutory limit on the I.G.'s authority. The Board has held repeatedly that neither the statute nor the regulations set any specific deadline for the I.G. to begin proceedings after a conviction. See Samuel W. Chang, M.D., DAB No. 1198, at 13-16 (1990). The time lapse between an offense and a conviction is clearly irrelevant, since the I.G.'s authority to act in a mandatory exclusion case derives from a conviction, not from the earlier date of the conduct for which the Petitioner was convicted. Chander Kachoria R.Ph., DAB No. 1380, at 9-10, n.7. (1993). Further, equitable arguments based on the I.G.'s delay in imposing an exclusion after the conviction on which it is based are irrelevant, where the period of the exclusion and the effective starting date are mandated. Richard G. Philips, D.P.M., DAB No. 1279, at 3 (1991). Given that the exclusion here is for the minimum mandatory period, no claim that the reasonableness or equities relating to the length of the exclusion may have changed due to the passage of time can be made. See, e.g., Christino Enriquez, M.D., DAB CR119 (1991). Nor did Petitioner lose an opportunity to seek consideration by the I.G. of mitigating information before the length of the exclusion was set, since again the exclusion period is the minimum allowed.

Petitioner also argued that the five-year exclusion was unreasonably long because prompt action by the I.G. after her 1997 conviction would have meant that two years would already have elapsed in her exclusion. Petitioner Br. at 4. On that basis, she asserted that anything beyond three years is unfair. Id. at 5. She further asserted that, during the interim period between the conviction and the I.G.'s notice, she took nurse practitioner training which will prove worthless if she is excluded for five years. Id. at 3-4. Petitioner in essence alleged a sort of detrimental reliance on the I.G.'s inaction. Finally, Petitioner pointed out that she was not convicted of a felony drug offense. Id. at 4. For all these reasons, she contended that a five-year exclusion is too harsh under the circumstances, and should be reversed or reduced.

The ALJ correctly found that five years is the mandatory minimum period of exclusion set by section 1128(c)(3)(B) of that Act for convictions to which section 1128(a)(1) applies, and that no discretion exists to reduce Petitioner's exclusion below that period. FFCL 17; ALJ Decision at 6, 9. Petitioner did not except to FFCL 17, and we sustained it. Like the ALJ, we have no authority to reduce the exclusion period below the statutory minimum once the I.G. has established the required elements of a mandatory exclusion. Moreover, nothing in the Act requires Petitioner's conviction to be for a felony rather than a misdemeanor in order to warrant a five-year exclusion. On the contrary, the Act expressly provides for mandatory five-year minimum periods of exclusion whenever an individual has been convicted "of a criminal offense related to the delivery of an item or service" under specific programs, including Medicaid, without any requirement that the offense be a felony.⁽⁸⁾ Section 1128(a)(1) of the Act. Hence, Petitioner's claims that the exclusion period is harsh are not relevant to any issue properly presented in this case.

We also note that any delay in bringing exclusion proceedings on the part of the I.G. does not increase the total period of exclusion, since Petitioner was not affected by the exclusion restrictions before the exclusion actually took effect. See Chander Kachoria, R.Ph., DAB No. 1380, at 10 (1993). To the extent that Petitioner's practice of her profession during the interim period was restricted because of her residential treatment and re-training programs, this impact resulted from her own difficulties and not from the I.G.'s action or delay.

Finally, Petitioner's exceptions to FFCLs 9 and 11 may also be understood as re-asserting her challenges below to the proposition that the deferred adjudication of her guilty plea constituted a conviction. Petitioner made no explicit argument to us on appeal in support of that position. Her position flies in the face of the express language of the statute, which defines "conviction" to include the situations where "a plea of guilty or nolo contendere by the individual or entity has been accepted by a Federal, State, or local court" or "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." Sections 1128(i)(3) and (4) of the Act. The Board has held that "Congress has defined for the ALJ and this Board what 'convicted' means for purposes of section 1128 and that definition is binding on us. Moreover, it is clear from the legislative history of this provision that Congress adopted such broad definitions to ensure that exclusions from federally funded health programs would not hinge on state criminal justice policies." Carolyn Westin, DAB No. 1381, at 6 (1993). We therefore affirm FFCLs 9 and 11.

For the reasons explained above, we affirm and adopt the FFCLs to which Petitioner did not except, affirm and adopt FFCLs 9 and 11 to which Petitioner excepted, and reject all of Petitioner's remaining arguments, except as to the issue of material fact whether Petitioner was convicted of a health care delivery offense. We vacate FFCLs 4, 12, 15, and 18, and reverse the summary disposition order. We remand to the ALJ to hold further proceedings consistent with this decision to consider additional evidence on the issue of material fact as to whether Petitioner's conviction was for an offense related to the delivery of a health care item or service under a covered program.

Judith A. Ballard

M. Terry Johnson

Donald F. Garrett
Presiding Board Member

1. Petitioner also challenged FFCL 4 as "not true and . . . in fact a legal impossibility" because citizens in Texas are not indicted for misdemeanors, only for felonies. Petitioner Br. at 1-2. The indictment on its face, however, clearly states that the offense charged is a misdemeanor, as it was described in FFCL 4. See I.G. Ex. 10. If proceeding by indictment was improper under Texas State law, a proposition disputed in the I.G.'s brief, any such procedural irregularity is not relevant to deciding this federal exclusion matter. It is a long-established principle that collateral attack of state proceedings is impermissible where the I.G.'s authority by statute derives directly from the fact of a conviction, and not from the procedural or substantive correctness of the conviction. See 42 C.F.R. § 1001.2006(d); Paul R. Scollo, D.P.M., DAB No. 1498 (1994); Peter Edmondson, DAB No. 1330 (1992).

2. The I.G. never squarely confronted this issue in her brief. She asserted, on the one hand, that extrinsic evidence is admissible to explain elements of "the offense to which a party pleads" and, on the other, that independent evidence demonstrates the nature of the offense "for which Petitioner was charged." I.G. Br. at 6-7. While both assertions are true, neither point establishes that the extrinsic evidence here demonstrated the nature of the offense to which Petitioner pled.

3. The indictment has a handwritten number 16110 on top of the first page. I.G. Ex. 10. While this notation may indicate a connection to the conviction with that cause number, Petitioner challenged the authenticity and relevance of the notation. The notation is not on the line for entering "cause number," where an entirely different cause number (A-96-0061-CR) is typed in. Furthermore, no evidence was offered to establish when the handwritten note was placed on the indictment (or whether it was there when the clerk certified the copy), nor by whom or for what purpose. (Conceivably, for example, it may have been an erroneous note that resulted in the indictment being misfiled in the same file as the case in which Petitioner was ultimately convicted.)

4. Petitioner submitted below an affidavit of her attorney averring that he checked with the county clerk and ascertained that no information was filed in cause number 16110. Petitioner Ex. 1. This observation cuts two ways. It could support an inference that the reference was to a missing information that was lost or removed from the file or that the files for claim numbers 16110 and A-96-0061-CR were intermingled somehow. On the other hand, had there been an intervening information in the file, the likelihood might be greater that the reference in the conviction was to that information, not the indictment.

5. Thus, even if Petitioner did not present evidence sufficient to rebut the I.G.'s evidence, summary disposition was inappropriate where the I.G.'s evidence on a necessary element failed to entirely resolve a factual issue about which dispute remained. The Board has explained this rule as follows:

If the documents before the court fail to establish clearly that there is no genuine issue as to any material fact, the motion must be denied. . . . On the other hand, the party opposing summary judgment does not have a duty to present opposing evidence in all circumstances. For example, Rule 56(e) of the Federal Rules of Civil Procedure states that a defense to a summary judgment motion is required only if the motion is "supported as provided in this rule." When the movant's documentary evidence demonstrates on its face the existence of a genuine dispute of material fact or when it fails to foreclose the possibility of a factual dispute, the non-moving party does not have an obligation to provide opposing evidentiary material and summary judgment should not be granted.

Thelma Walley, DAB No. 1367, at 6 (1992) (emphasis in original) (citations omitted).

6. It is apparent that Petitioner understood that the case record was relevant for some purposes, since her briefs argued the history of wrong addresses used by the I.G. based only on letters in the case record without having offered them as evidentiary exhibits. Cf. Petitioner Br. at 4.

7. We note that this reference by Petitioner to an October 1995 occurrence underlying the conviction indicates that Petitioner was the party convicted and was aware of the basis for the conviction. The date reference, however, does not help tie the conviction to the extrinsic factual evidence presented by the I.G. to show the underlying offense of which she was convicted. All the material presented by the I.G. related to an offense on September 2, 1995, not in October at which time Petitioner had already been terminated from the nursing home. See I.G. Ex. 2, at 4; I.G. Ex. 3, at 2.

8. By contrast, where a conviction for controlled substances or health care fraud involves conduct that is not program-related, a mandatory exclusion applies only if the conviction was for a felony. See sections 1128(a)(3) and (4) of the Act. Since it is not disputed that the September 2, 1995 misconduct involved a Medicaid patient, the only remaining issue is whether that misconduct formed the basis of the conviction.