[Code of Federal Regulations]

[Title 24, Volume 1]

[Revised as of April 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 24CFR28.40]



[Page 306-307]

 

                 TITLE 24--HOUSING AND URBAN DEVELOPMENT

 

PART 28_IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986

--Table of Contents

 

Sec.  28.40  Hearings.



    (a) General. Hearings under this part shall be conducted in 

accordance with the procedures in 24 CFR part 26, subpart B.

    (b) Factors to consider in determining amount of penalties and 

assessments. In determining an appropriate amount of civil penalties and 

assessments, the administrative law judge (ALJ) and, upon appeal, the 

Secretary shall consider and state in their opinions any mitigating or 

aggravating circumstances. Because of the intangible costs of fraud, the 

expense of investigating fraudulent conduct, and the need for 

deterrence, ordinarily double damages and a significant civil penalty 

should be imposed. The ALJ and the Secretary shall consider the 

following factors in determining the amount of penalties and assessments 

to be imposed:

    (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



[[Page 307]]



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) Any other factors that in any given case may mitigate or 

aggravate the offense for which penalties and assessments are imposed.

    (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.