Section 423.1046 - Conduct of hearing(a)Participants in the hearing. The hearing is open to the parties and their representatives and technical advisors, and to any other persons whose presence the ALJ considers necessary or proper.(b)Hearing procedures.(1) The ALJ inquires fully into all of the matters at issue, and receives in evidence the testimony of witnesses and any documents that are relevant and material.(2) If the ALJ believes that there is relevant and material evidence available which has not been presented at the hearing, he may, at any time before mailing of notice of the decision, reopen the hearing to receive that evidence.(3) The ALJ decides the order in which the evidence and the arguments of the parties are presented and the conduct of the hearing.(4) CMS has the burden of coming forward with evidence related to disputed findings that is sufficient (together with any undisputed findings and legal authority) to establish a prima facie case that CMS has a legally sufficient basis for its determination.(5) The affected party has the burden of coming forward with evidence sufficient to establish the elements of any affirmative argument or defense which it offers.(6) The affected party bears the ultimate burden of persuasion. To prevail, the affected party must prove by a preponderance of the evidence on the record as a whole that there is no basis for the determination.(c)Review of the penalty. When an ALJ finds that the basis for imposing a civil money penalty exists, as specified in 423.752, the ALJ may not-(1) Set a penalty of zero or reduce a penalty to zero, or(2) Review the exercise of discretion by CMS to impose a civil money penalty.