PART 28—IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 Authority: 28 U.S.C. 2461 note; 31 U.S.C. 3801-3812; 42 U.S.C. 3535(d). Source: 61 FR 50213, Sept. 24, 1996, unless otherwise noted. § 28.1 Purpose. This part: (a) Establishes administrative procedures for imposing civil penalties and assessments against persons who make, submit, or present, or cause to be made, submitted, or presented, false, fictitious, or fraudulent claims or written statements to Federal authorities or to their agents; and (b) Specifies the hearing and appeal rights of persons subject to allegations of liability for such penalties and assessments. Hearings under this part shall be conducted in accordance with the Administrative Procedure Act pursuant to part 26, subpart B, of this chapter. [61 FR 50213, Sept. 24, 1996, as amended at 73 FR 76831, Dec. 17, 2008] § 28.5 Definitions. (a) The terms ALJ HUD (b) The terms Claim, Knows or has reason to know, Person, Reviewing Official, Statement (c) Ability to pay (d) Benefit (e) Respondent (f) The reasonable prospect of collecting an appropriate amount of penalties and assessments (g) Report of Investigation [73 FR 76831, Dec. 17, 2008] § 28.10 Basis for civil penalties and assessments. (a) Claims. (i) Is false, fictitious, or fraudulent; (ii) Includes or is supported by a written statement which asserts a material fact which is false, fictitious, or fraudulent; (iii) Includes or is supported by any written statement that: (A) Omits a material fact; (B) Is false, fictitious, or fraudulent as a result of the omission; and (C) Is a statement in which the person making, presenting, or submitting such statement has a duty to include such material fact; or (iv) Is for payment for the provision of property or services which the person has not provided as claimed. (2) Each voucher, invoice, claim form, or other individual request or demand for property, services, or money constitutes a separate claim. (3) A claim shall be considered made to HUD, to a recipient, or to a party when the claim actually is made to an agent, fiscal intermediary, or other entity, including any State or political subdivision of a State, acting for or on behalf of HUD, the recipient, or the party. (4) Each claim for property, services, or money is subject to a civil penalty without regard to whether the property, services, or money actually is delivered or paid. (5) Liability under this part shall not lie if the amount of money or value of property or services claimed exceeds $150,000 as to each claim that a person submits. For purposes of paragraph (a) of this section, a group of claims submitted simultaneously as part of a single transaction shall be considered a single claim. (6) If the Government has made any payment, transferred property, or provided services on a claim, then the Government may assess a person found liable up to twice the amount of the claim or portion of the claim that is determined to be in violation of paragraph (a)(1) of this section. (b) Statements. (i)(A) Asserts a material fact which is false, fictitious, or fraudulent; or (B)( 1 ( 2 (ii) In the case of a statement described in (b)(1)(i)(B) of this section, is a statement in which the person making, presenting, or submitting such statement has a duty to include such material fact; and (iii) Contains or is accompanied by an express certification or affirmation of the truthfulness and accuracy of the contents of the statement. (2) Each written representation, certification, or affirmation constitutes a separate statement. (3) A statement shall be considered made to HUD when the statement is actually made to an agent, fiscal intermediary, or other entity, including any State or political subdivision of a State, acting for or on behalf of HUD. (c) Limit on liability. housing benefits (d) Specific intent. (e) Joint and several liability. [61 FR 50213, Sept. 24, 1996, as amended at 68 FR 12787, Mar. 17, 2003; 72 FR 5588, Feb. 6, 2007; 73 FR 76831, Dec. 17, 2008; 78 FR 4059, Jan. 18, 2013; 81 FR 38935, June 15, 2016; 82 FR 24524, May 30, 2017; 83 FR 32793, July 16, 2018; 84 FR 9453, Mar. 15, 2019; 85 FR 13043, Mar. 6, 2020; 86 FR 14372, Mar. 16, 2021; 86 FR 31619, June 15, 2021; 87 FR 24420, Apr. 26, 2022; 88 FR 9748, Feb. 15, 2023; 89 FR 13616, Feb. 23, 2024; 90 FR 24747, June 12, 2025] § 28.15 Investigation. (a) General. (b) Subpoena. (c) Investigation report. (d) The Inspector General may refer allegations directly to the Department of Justice for suit under the False Claims Act (31 U.S.C. 3730) or for other civil relief, or may postpone submitting a report to the General Counsel to avoid interference with a criminal investigation or prosecution. The Inspector General shall report violations of criminal law to the Attorney General. § 28.20 Request for approval by the Department of Justice. (a) If the General Counsel or designee determines that the Report of Investigation supports an action under this part, he or she must submit a written request to the Department of Justice for approval to issue a complaint under § 28.25. (b) The request shall include a description of the claims or statements at issue; the evidence supporting the allegations; an estimate of the amount of money or the value of property, services, or other benefits requested or demanded in violation of § 28.10; any exculpatory or mitigating circumstances that may relate to the claims or statements; and a statement that there is a reasonable prospect of collecting an appropriate amount of penalties and assessments. [73 FR 76831, Dec. 17, 2008] § 28.25 Complaint. (a) General. (b) Complaint. (1) The allegations of liability against the respondent, including the statutory basis for liability, the claims or statements at issue, and the reasons why liability arises from those claims or statements; (2) A statement that the required approval to issue the complaint was received from the Department of Justice as required by 24 CFR 28.20; (3) The amount of penalties and assessments for which the respondent may be held liable; (4) A statement that the respondent may request a hearing by submitting a written response to the complaint; (5) The addresses to which a response must be sent in accordance with § 26.38 of this title; and (6) A statement that failure to submit an answer within 30 days of receipt of the complaint may result in the imposition of the maximum amount of penalties and assessments sought without right of appeal. (c) Parts 26 and 28. (d) Obligation to preserve documents. [73 FR 76832, Dec. 17, 2008, as amended at 87 FR 8197, Feb. 14, 2022] § 28.30 Response. (a) The respondent may file a written response to the complaint, in accordance with § 26.30 of this title, within 30 days of service of the complaint. The response shall be deemed to be a request for a hearing. The response must include the admission or denial of each allegation of liability made in the complaint; any defense on which the respondent intends to rely; any reasons why the penalties and assessments should be less than the amount set forth in the complaint; and the name, address, and telephone number of the person who will act as the respondent's representative, if any. (b) Failure to respond. [73 FR 76832, Dec. 17, 2008] § 28.35 Statute of limitations. The statute of limitations for commencing hearings under this part shall be tolled: (a) If the hearing is commenced in accordance with 31 U.S.C. 3803(d)(2)(B) within 6 years after the date on which the claim or statement is made; or (b) If the parties agree to such tolling. [73 FR 76832, Dec. 17, 2008] § 28.40 Hearings. (a) General. (b) Factors to consider in determining amount of penalties and assessments. (1) The number of false, fictitious, or fraudulent claims or statements; (2) The time period over which such claims or statements were made; (3) The degree of the respondent'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 cost of investigation; (6) The relationship of the 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 respondent has engaged in a pattern of the same or similar misconduct; (9) Whether the respondent attempted to conceal the misconduct; (10) The degree to which the respondent has involved others in the misconduct or in concealing it; (11) If the misconduct of employees or agents is imputed to the respondent, the extent to which the respondent's practices fostered or attempted to preclude the misconduct; (12) Whether the respondent cooperated in or obstructed an investigation of the misconduct; (13) Whether the respondent assisted in identifying and prosecuting other wrongdoers; (14) The complexity of the program or transaction, and the degree of the respondent's sophistication with respect to it, including the extent of the respondent's prior participation in the program or in similar transactions; (15) Whether the respondent 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; (16) The need to deter the respondent and others from engaging in the same or similar misconduct; and (17) The respondent's ability to pay, and (18) Any other factors that in any given case may mitigate or aggravate the seriousness of the false claim or statement. (c) Stays ordered by the Department of Justice. [61 FR 50213, Sept. 24, 1996, as amended at 73 FR 76832, Dec. 17, 2008] § 28.45 Settlements. (a) HUD and the respondent may enter into a settlement agreement at any time prior to the issuing of a notice of final determination under § 26.50 of this title. (b) Failure of the respondent to comply with a settlement agreement shall be sufficient cause for resuming an action under this part, or for any other judicial or administrative action.