§ 28.40 Hearings. ( a ) *General.* Hearings under this part shall be conducted in accordance with the procedures in part 26, subpart B, of this chapter, governing actions in accordance with the Administrative Procedure Act.
( b ) *Factors to consider in determining amount of penalties and assessments.* In determining an appropriate amount of civil penalties and assessments, the ALJ and, upon appeal, the Secretary or designee, shall consider and state in his or her opinion any mitigating or aggravating circumstances. Because of the intangible costs of fraud, the expense of investigating fraudulent conduct, and the need for deterrence, ordinarily twice the amount of the claim as alleged by the government, and a significant civil penalty, should be imposed. The amount of penalties and assessments imposed shall be based on the ALJ's and the Secretary's or designee's consideration of evidence in support of one or more of the following factors: ( 1 ) The number of false, fictitious, or fraudulent claims or statements;
( 2 ) The time period over which such claims or statements were made;
( 3 ) The degree of the respondent's culpability with respect to the misconduct;
( 4 ) The amount of money or the value of the property, services, or benefit falsely claimed;
( 5 ) The value of the Government's actual loss as a result of the misconduct, including foreseeable consequential damages and the cost of investigation;
( 6 ) The relationship of the civil penalties to the amount of the Government's loss;
( 7 ) The potential or actual impact of the misconduct upon national defense, public health or safety, or public confidence in the management of Government programs and operations, including particularly the impact on the intended beneficiaries of such programs;
( 8 ) Whether the respondent has engaged in a pattern of the same or similar misconduct;
( 9 ) Whether the respondent attempted to conceal the misconduct;
( 10 ) The degree to which the respondent has involved others in the misconduct or in concealing it;
( 11 ) If the misconduct of employees or agents is imputed to the respondent, the extent to which the respondent's practices fostered or attempted to preclude the misconduct;
( 12 ) Whether the respondent cooperated in or obstructed an investigation of the misconduct;
( 13 ) Whether the respondent assisted in identifying and prosecuting other wrongdoers;
( 14 ) The complexity of the program or transaction, and the degree of the respondent's sophistication with respect to it, including the extent of the respondent's prior participation in the program or in similar transactions;
( 15 ) Whether the respondent has been found, in any criminal, civil, or administrative proceeding, to have engaged in similar misconduct or to have dealt dishonestly with the Government of the United States or of a State, directly or indirectly;
( 16 ) The need to deter the respondent and others from engaging in the same or similar misconduct; and
( 17 ) The respondent's ability to pay, and
( 18 ) Any other factors that in any given case may mitigate or aggravate the seriousness of the false claim or statement.
( c ) *Stays ordered by the Department of Justice.* If at any time the Attorney General of the United States or an Assistant Attorney General designated by the Attorney General notifies the Secretary in writing that continuation of HUD's case may adversely affect any pending or potential criminal or civil action related to the claim or statement at issue, the ALJ or the Secretary shall stay the process immediately. The case may be resumed only upon receipt of the written authorization of the Attorney General.
[61 FR 50213, Sept. 24, 1996, as amended at 73 FR 76832, Dec. 17, 2008]