[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: 45CFR79.10]



[Page 286-287]

 

                        TITLE 45--PUBLIC WELFARE

 

                    SUBTITLE A--DEPARTMENT OF HEALTH

                           AND HUMAN SERVICES

 

PART 79_PROGRAM FRAUD CIVIL REMEDIES--Table of Contents

 

Sec.  79.10  Default upon failure to file an answer.



    (a) If the defendant does not file an answer within the time 

prescribed in Sec.  79.9(a), the reviewing official may refer the 

complaint to the ALJ.

    (b) Upon the referral of the complaint, the ALJ shall promptly serve 

on the defendant in the manner prescribed in Sec.  79.8, a notice that 

an initial decision will be issued under this section.

    (c) The ALJ shall assume the facts alleged in the complaint to be 

true and, if such facts establish liability under Sec.  79.3, the ALJ 

shall issue an initial decision imposing the maximum amount of penalties 

and assessments allowed under the statute.

    (d) Except as otherwise provided in this section, by failing to file 

a timely answer, the defendant waives any right to further review of the 

penalties and assessments imposed under paragraph (c) of this section, 

and the initial decision shall become final and binding upon the parties 

30 days after it is issued.

    (e) If, before such an initial decision becomes final, the defendant 

files a motion with the ALJ seeking to reopen on the grounds that 

extraordinary circumstances prevented the defendant from filing an 

answer, the initial decision shall be stayed pending the ALJ's decision 

on the motion.

    (f) If, on such motion, the defendant can demonstrate extraordinary 

circumstances excusing the failure to file a timely answer, the ALJ 

shall withdraw the initial decision in paragraph (c) of this section, if 

such a decision has been issued, and shall grant the defendant an 

opportunity to answer the complaint.

    (g) A decision of the ALJ denying a defendant's motion under 

paragraph (e) of this section is not subject to reconsideration under 

Sec.  79.38.

    (h) The defendant may appeal to the authority head the decision 

denying a motion to reopen by filing a notice of appeal with the 

authority head within 15 days after the ALJ denies the motion. The 

timely filing of a notice of appeal shall stay the initial decision 

until the authority head decides the issue.



[[Page 287]]



    (i) If the defendant files a timely notice of appeal with the 

authority head, the ALJ shall forward the record of the proceeding to 

the authority head.

    (j) The authority head shall decide expeditiously whether 

extraordinary circumstances excuse the defendant's failure to file a 

timely answer based solely on the record before the ALJ.

    (k) If the authority head decides that extraordinary circumstances 

excuse the defendant's failure to file a timely answer, the authority 

head shall remand the case to the ALJ with instructions to grant the 

defendant an opportunity to answer.

    (l) If the authority head decides that the defendant's failure to 

file a timely answer is not excused, the authority head shall reinstate 

the initial decision of the ALJ, which shall become final and binding 

upon the parties 30 days after the authority head issues such decision.