On June 3, 2013, Florida Governor Rick Scott approved two bills expanding the scope and investigative powers of the State Attorney General under Florida’s False Claim Act. Florida’s False Claim Act currently allows a civil action on behalf of the state against any person who presents or submits false claims for payment or approval to a state agency, uses false records to get a claim paid, or who conspires to do so. Florida’s Attorney General may investigate claims but does not have subpoena powers unless there is a pending action in court.
Florida Governor Rick Scott approved CS/CS/HB 935 on June 3, 2013, which expands the investigative powers of the Florida Department of Legal Affairs. The DLA may now subpoena records, require answering of written questions under oath, and compel the giving of sworn testimony, all prior to a False Claim Act action being filed. Penalties of up to $1,000,000 are provided for the destruction or use of potential evidence subject to a subpoena if a person knows or “has reason to believe” a subpoena has been issued. The FCA now includes state subdivisions and instrumentalities, vests exclusive state prosecution authority to the DLA and the Department of Financial Services, and changes the statute of limitations to three years from the date these agencies became aware of the material facts giving rise to such claims. Either department may intervene in a private action brought under the FCA. Private FCA actions will be precluded when the facts underlying such claims have become publicly known. An accompanying bill, HB 1297 was also approved by Governor Scott and provides that information obtained pursuant to an FCA investigation is confidential and exempt from the public records laws.
Both bills become law effective on July 1, 2013.
The majority of business dealings with the state are conducted honestly and above board, but all companies doing business with the state must assure complete compliance with the requirements of truthful presentation of applications for payment and associated documents. All companies doing business with the state in any capacity must also be aware of the potential ramifications of a subpoena or even knowledge of a subpoena. If your firm does business with the state, consultation with legal counsel regarding appropriate records retention policies and protective measures to assure accuracy in applications for payment is advised.