[Code of Federal Regulations]

[Title 45, Volume 1]

[Revised as of October 1, 2006]

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

[CITE: 45CFR160.534]



[Page 723]

 

                        TITLE 45--PUBLIC WELFARE

 

                    SUBTITLE A--DEPARTMENT OF HEALTH

                           AND HUMAN SERVICES

 

PART 160_GENERAL ADMINISTRATIVE REQUIREMENTS--Table of Contents

 

                    Subpart E_Procedures for Hearings

 

Sec.  160.534  The hearing.



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

determine whether the respondent should be found liable under this part.

    (b) (1) The respondent has the burden of going forward and the 

burden of persuasion with respect to any:

    (i) Affirmative defense pursuant to Sec.  160.410 of this part;

    (ii) Challenge to the amount of a proposed penalty pursuant to 

Sec. Sec.  160.404-160.408 of this part, including any factors raised as 

mitigating factors; or

    (iii) Claim that a proposed penalty should be reduced or waived 

pursuant to Sec.  160.412 of this part.

    (2) The Secretary has the burden of going forward and the burden of 

persuasion with respect to all other issues, including issues of 

liability and the existence of any factors considered as aggravating 

factors in determining the amount of the proposed penalty.

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

the evidence.

    (c) The hearing must be open to the public unless otherwise ordered 

by the ALJ for good cause shown.

    (d)(1) Subject to the 15-day rule under Sec.  160.518(a) and the 

admissibility of evidence under Sec.  160.540, either party may 

introduce, during its case in chief, items or information that arose or 

became known after the date of the issuance of the notice of proposed 

determination or the request for hearing, as applicable. Such items and 

information may not be admitted into evidence, if introduced--

    (i) By the Secretary, unless they are material and relevant to the 

acts or omissions with respect to which the penalty is proposed in the 

notice of proposed determination pursuant to Sec.  160.420 of this part, 

including circumstances that may increase penalties; or

    (ii) By the respondent, unless they are material and relevant to an 

admission, denial or explanation of a finding of fact in the notice of 

proposed determination under Sec.  160.420 of this part, or to a 

specific circumstance or argument expressly stated in the request for 

hearing under Sec.  160.504, including circumstances that may reduce 

penalties.

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

admitted in rebuttal even if not previously exchanged in accordance with 

Sec.  160.518.