[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: 45CFR79.39]



[Page 295-296]

 

                        TITLE 45--PUBLIC WELFARE

 

                    SUBTITLE A--DEPARTMENT OF HEALTH

                           AND HUMAN SERVICES

 

PART 79_PROGRAM FRAUD CIVIL REMEDIES--Table of Contents

 

Sec.  79.39  Appeal to authority head.



    (a) Any defendant who has filed a timely answer and who is 

determined in an initial decision to be liable for a civil penalty or 

assessment may appeal such decision to the authority head by filing a 

notice of appeal with the authority head in accordance with this 

section.

    (b)(1) A notice of appeal may be filed at any time within 30 days 

after the ALJ issues an initial decision. However, if another party 

files a motion for reconsideration under Sec.  79.38, consideration of 

the appeal shall be stayed automatically pending resolution of the 

motion for reconsideration.

    (2) If a motion for reconsideration is timely filed, a notice of 

appeal must be filed within 30 days after the ALJ denies the motion or 

issues a revised initial decision, whichever applies.

    (3) If no motion for reconsideration is timely filed, a notice of 

appeal must be filed within 30 days after the ALJ issues the initial 

decision.

    (4) The authority head may extend the initial 30-day period for an 

additional 30-days if the defendant files with the authority head a 

request for an extension within the initial 30 day period and shows good 

cause.

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

authority head, and the time for filing motions for reconsideration 

under Sec.  79.38 has expired, the ALJ shall forward the record of the 

proceeding to the authority head.

    (d) A notice of appeal shall be accompanied by a written brief 

specifying exceptions to the initial decision and reasons supporting the 

exceptions.

    (e) The representative for the Government may file a brief in 

opposition to exceptions within 30 days of receiving the notice of 

appeal and accompanying brief.

    (f) There is no right to appear personally before the authority 

head.

    (g) There is no right to appeal any interlocutory ruling by the ALJ.

    (h) In reviewing the initial decision, the authority head shall not 

consider any objection that was not raised before the ALJ unless a 

demonstration is made of extraordinary circumstances causing the failure 

to raise the objection.



[[Page 296]]



    (i) If any party demonstrates to the satisfaction of the authority 

head that additional evidence not presented at such hearing is material 

and that there were reasonable grounds for the failure to present such 

evidence at such hearing, the authority head shall remand the matter to 

the ALJ for consideration of such additional evidence.

    (j) The authority head may affirm, reduce, reverse, compromise, 

remand, or settle any penalty or assessment determined by the ALJ in any 

initial decision.

    (k) The authority head shall promptly serve each party to the appeal 

with a copy of the decision of the authority head and a statement 

describing the right of any person determined to be liable for a penalty 

or assessment to seek judicial review.

    (l) Unless a petition for review is filed as provided in 31 U.S.C. 

3805 after a defendant has exhausted all administrative remedies under 

this part and within 60 days after the date on which the authority head 

serves the defendant with a copy of the authority head's decision, a 

determination that a defendant is liable under Sec.  79.3 is final and 

is not subject to judicial review.