[Code of Federal Regulations]

[Title 42, Volume 4]

[Revised as of October 1, 2006]

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

[CITE: 42CFR1005.15]



[Page 1201-1202]

 

                         TITLE 42--PUBLIC HEALTH

 

      GENERAL--HEALTH CARE, DEPARTMENT OF HEALTH AND HUMAN SERVICES

 

PART 1005_APPEALS OF EXCLUSIONS, CIVIL MONEY PENALTIES AND ASSESSMENTS--

 

Sec.  1005.15  The hearing and burden of proof.



    (a) The ALJ will conduct a hearing on the record in order to 

determine whether the petitioner or respondent should be found liable 

under this part.

    (b) With regard to the burden of proof in civil money penalty cases 

under part 1003, in Quality Improvement Organization exclusion cases 

under part 1004, and in exclusion cases under Sec. Sec.  1001.701, 

1001.901 and 1001.951 of this chapter--



[[Page 1202]]



    (1) The respondent or petitioner, as applicable, bears the burden of 

going forward and the burden of persuasion with respect to affirmative 

defenses and any mitigating circumstances; and

    (2) The IG bears the burden of going forward and the burden of 

persuasion with respect to all other issues.

    (c) Burden of proof in all other exclusion cases. In all exclusion 

cases except those governed by paragraph (b) of this section, the ALJ 

will allocate the burden of proof as the ALJ deems appropriate.

    (d) The burden of persuasion will be judged by a preponderance of 

the evidence.

    (e) The hearing will be open to the public unless otherwise ordered 

by the ALJ for good cause shown.

    (f)(1) A hearing under this part is not limited to specific items 

and information set forth in the notice letter to the petitioner or 

respondent. Subject to the 15-day requirement under Sec.  1005.8, 

additional items and information, including aggravating or mitigating 

circumstances that arose or became known subsequent to the issuance of 

the notice letter, may be introduced by either party during its case-in-

chief unless such information or items are--

    (i) Privileged;

    (ii) Disqualified from consideration due to untimeliness in 

accordance with Sec.  1004.130(a)(2)(ii); or

    (iii) Deemed otherwise inadmissible under Sec.  1005.17.

    (2) After both parties have presented their cases, evidence may be 

admitted on rebuttal even if not previously exchanged in accordance with 

Sec.  1005.8.



[57 FR 3350, Jan. 29, 1992, as amended at 63 FR 46691, Sept. 2, 1998; 65 

FR 24418, Apr. 26, 2000]