§ 308.530 Determining the amount of penalties and assessments. ( a ) In determining an appropriate amount of civil penalties and assessments, the ALJ and the Board, upon appeal, should evaluate any circumstances that mitigate or aggravate the violation and should articulate in their opinions the reasons that support the penalties and assessments they impose. Because of the intangible costs of fraud, the expense of investigating such conduct, and the need to deter others who might be similarly tempted, ordinarily double damages and a significant civil penalty should be imposed.
( b ) Although not exhaustive, the following factors are among those that may influence the ALJ and the Board in determining the amount of penalties and assessments to impose with respect to the misconduct (*i.e.,* the false, fictitious, or fraudulent claims or statement) charged in the complaint: ( 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 defendant'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 costs of investigation;
( 6 ) The relationship of the amount imposed as 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 defendant has engaged in a pattern of the same or similar misconduct;
( 9 ) Whether the defendant attempted to conceal the misconduct;
( 10 ) The degree to which the defendant has involved others in the misconduct or in concealing it;
( 11 ) Where the misconduct of employees or agents is imputed to the defendant, the extent to which the defendant's practices fostered or attempted to preclude such misconduct;
( 12 ) Whether the defendant cooperated in or obstructed an investigation of the misconduct;
( 13 ) Whether the defendant assisted in identifying and prosecuting other wrongdoers;
( 14 ) The complexity of the program or transaction, and the degree of the defendant's sophistication with respect to it, including the extent of the defendant's prior participation in the program or in a similar transaction;
( 15 ) Whether the defendant 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; and
( 16 ) The need to deter the defendant and others from engaging in the same or similar misconduct.
( c ) Nothing in this section will be construed to limit the ALJ or the Board from considering any other factors that in any given case may mitigate or aggravate the offense for which penalties and assessments are imposed.
( d ) Civil money penalties that are assessed under this subpart are subject to annual adjustments to account for inflation as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74, sec. 701, 129 Stat. 584) (*see also* § 308.132(d)).
[66 FR 9189, Feb. 7, 2001, as amended at 83 FR 61115, Nov. 28, 2018]