In June 2013, Florida’s legislature significantly amended Florida’s False Claims Act, Fla. Stat. §§ 68.081-68.092 (“FFCA”), effective July 1, 2013. Although these amendments have not received much publicity or commentary, they considerably expanded the FFCA’s scope, among other important changes. Persons potentially subject to the FFCA, including those who seek and receive payments from the state, should carefully review and consider these amendments, and also consider revising their compliance policies accordingly.
The FFCA is modeled after the federal False Claims Act, 31 U.S.C. §§ 3729-3733 (“FCA”), and functions in much the same way. The FFCA authorizes both Florida’s government and private individuals (acting on the government’s behalf) to bring civil actions for damages against persons engaging in prohibited conduct. Specifically, and among other things, the FFCA creates civil liability for a person who: “(a) Knowingly presents or causes to be presented a false or fraudulent claim for payment or approval; (b) Knowingly makes, uses, or causes to be made or used a false record or statement material to a false or fraudulent claim; (c) Conspires to commit a violation of [Fla. Stat. § 68.082(2)]; … and (g) Knowingly makes, uses, or causes to be made or used a false record or statement material to an obligation to pay or transmit money or property to the state, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the state.” The FFCA often arises in the context of the health care industry.
The 2013 FFCA amendments were passed into law through CS/CS/HB 935 (now Ch. 2013-104) and CS/CS/HB 1297 (now Ch. 2013-105). The House of Representatives Final Bill Analysis reports for CS/CS/HB 935 and CS/CS/HB 1297 provide insights into many of the changes. However, it is critical to carefully review the amendments themselves. Although in no way a comprehensive list, some notable amendments include:
- Expanding the FFCA’s scope to include false claims made to state subdivisions and instrumentalities. The FFCA previously covered only false claims made to an “agency,” defined, in essence, as an official or subset of the executive branch. The amendments entirely removed “agency” from the statute, and in the context of the law’s scope, replaced “agency” with “state,” defined as “the government of the state or any department, division, bureau, commission, regional planning board, district authority, or other instrumentality of the state.”
- Establishing the Department of Legal Affairs (“DLA”) and the Department of Financial Services (“DFS”), rather than the DLA or any “agency,” as the only state entities that can pursue FFCA actions.
- Creating § 68.0831, which grants the DLA broad new subpoena powers, including to require subpoena recipients to produce documents, answer interrogatories under oath, and give sworn testimony.
- Providing that any person who alters, destroys, or conceals evidence, or makes or uses a false record or document, while having reason to believe that a subpoena is pending pursuant to § 68.0831, is subject to penalties of up to $100,000 for any natural person, and up to $1,000,000 for any other person, plus attorneys’ fees and costs.
- Adding a subsection (8) to § 68.083, establishing that (with some limitations) both the complaint and the information the DLA or DFS hold pursuant to an FFCA investigation are confidential and exempt from public records disclosure laws.
Amendments Not Made
It is also intriguing to consider amendments that were not made. States receive a federal economic incentive for conforming their false claims acts to the FCA and meeting certain requirements enumerated in section 1909(b) of the Social Security Act. The Inspector General of the Department of Health and Human Services (“OIG”) determines if a state’s law qualifies. The FFCA does not qualify for this economic incentive, and the 2013 amendments do not appear to make all of the changes that the OIG advised would be required for qualification. Nevertheless, and regardless of the federal economic incentive, the 2013 amendments facilitate FFCA actions, and persons potentially subject to the FFCA, including those who seek and receive payments from the state, should carefully review and consider them.