[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: 45CFR79.31]



[Page 292-293]

 

                        TITLE 45--PUBLIC WELFARE

 

                    SUBTITLE A--DEPARTMENT OF HEALTH

                           AND HUMAN SERVICES

 

PART 79_PROGRAM FRAUD CIVIL REMEDIES--Table of Contents

 

Sec.  79.31  Determining the amount of penalties and assessments.



    (a) In determining an appropriate amount of civil penalties and 

assessments, the ALJ and the authority head, 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 authority head in determining the 

amount of penalties and assessments to impose with respect to the 

misconduct (i.e., the false, fictitious, or fraudulent claims or 

statements) 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;



[[Page 293]]



    (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 similar 

transactions;

    (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 shall be construed to limit the ALJ or 

the authority head from considering any other factors that in any given 

case may mitigate or aggravate the offense for which penalties and 

assessments are imposed.