Bill Text: AZ HB2845 | 2012 | Fiftieth Legislature 2nd Regular | Introduced

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Bill Title: State false claims actions

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2012-02-09 - Referred to House JUD Committee [HB2845 Detail]

Download: Arizona-2012-HB2845-Introduced.html

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REFERENCE TITLE: state false claims actions

 

 

 

 

State of Arizona

House of Representatives

Fiftieth Legislature

Second Regular Session

2012

 

 

HB 2845

 

Introduced by

Representative Patterson

 

 

AN ACT

 

amending title 12, Arizona Revised Statutes, by adding chapter 23; relating to state false claims actions.

 

 

(TEXT OF BILL BEGINS ON NEXT PAGE)

 

Be it enacted by the Legislature of the State of Arizona:

Section 1.  Title 12, Arizona Revised Statutes, is amended by adding chapter 23, to read:

CHAPTER 23

STATE FALSE CLAIMS ACTIONS

ARTICLE 1.  GENERAL PROVISIONS

START_STATUTE12-3151.  Definitions

In this chapter, unless the context otherwise requires:

1.  "Claim":

(a)  Includes any request or demand for money or property, whether or not the state has title to the money or property, made to any employee, officer or agent of this state or to any contractor, grantee or other recipient, whether under contract or not, if the money or property requested or demanded is spent or used on the behalf of this state or to advance an Arizona health care cost containment system program or interest and the state does either of the following:

(i)  Provides or has provided any portion of the money or property that is requested or demanded.

(ii)  Will reimburse the contractor, grantee or other recipient for any portion of the money or property that is requested or demanded.

(b)  Does not include requests or demands for property that the state has paid to an individual as compensation for state employment or as an income subsidy with no restrictions on the individual's use of the money or property.

2.  "Knowing" and "knowingly" mean that a person, with respect to information, does any of the following:

(a)  Has actual knowledge of the information.

(b)  Acts in deliberate ignorance of the truth or falsity of the information.

(c)  Acts in reckless disregard of the truth or falsity of the information.

3.  "Material" means having a natural tendency to influence or be capable of influencing the payment or receipt of money or property.

4.  "Obligation" means an established duty, whether fixed or not, arising from an express or implied relationship that is either contractual or between a grantor and grantee or licensor and licensee, from a fee based or similar relationship, statute, rule or retention of any overpayment. END_STATUTE

START_STATUTE12-3152.  False claims action; damages; civil penalty; applicability

A.  A person who does any of the following is liable to this state:

1.  Knowingly presents or causes to be presented a false claim for payment or approval.

2.  Knowingly makes, uses or causes to be made or used a false record or statement that is material to a false or fraudulent claim.

3.  Conspires to defraud pursuant to paragraph 1, 2, 4, 5, 6 or 7 of this subsection.

4.  Has possession, custody or control of property or money used or that will be used by this state and who knowingly delivers or causes to be delivered less property than all of the property or money.

5.  Is authorized to make or deliver a document certifying receipt of property used or that will be used by this state and who with intent to defraud makes or delivers the receipt without completely knowing that the information on the receipt is true.

6.  Knowingly buys or receives, as a pledge of an obligation or debt, public property from any officer or employee of this state who lawfully may not sell or pledge the property.

7.  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 this state.

B.  A person who violates subsection A of this section is liable for three times the amount of damages that this state sustains because of the act of that person, is liable for the costs of a civil action brought to recover any of those penalties or damages and may be liable to this state for a civil penalty of not less than five thousand five hundred dollars and not more than eleven thousand dollars for each violation.

C.  Notwithstanding subsection B of this section, the court may limit the amount of damages assessed to not more than two times the amount of damages that this state sustains because of the act of the person and may not assess a civil penalty if the court finds that all of the following apply:

1.  The person committing the violation furnished officials of this state who are responsible for investigating false claims violations with all information known to that person about the violation within thirty days after the date on which the person first obtained the information.

2.  The person fully cooperated with any investigation of the violation by this state.

3.  At the time the person furnished this state with information about the violation no criminal prosecution, civil action or administrative action had commenced with respect to the violation and the person did not have actual knowledge of the existence of an investigation into the violation.

D.  This section does not apply to claims, records or statements that are made pursuant title 42 or 43. END_STATUTE

ARTICLE 2.  INVESTIGATIONS AND PROSECUTIONS

START_STATUTE12-3161.  Investigation and prosecution of false claims; attorney general; qui tam plaintiff; prosecuting authority

A.  The attorney general shall diligently investigate any act that is listed in section 12-3152.  If the attorney general finds that a person has committed an act or is committing an act listed in section 12-3152, the attorney general may bring a civil action against that person.

B.  A private person may bring a qui tam action for an act that is committed or has been committed by another person and that is listed in section 12-3152 for the State of Arizona in the name of the state.  The action may be dismissed only with the written consent of the court and the attorney general.  The complaint shall be filed in superior court in camera and shall remain under seal for at least one hundred twenty days.  The defendant shall not be served until the court orders the service of the defendant.

C.  On the same day as the complaint is filed pursuant to subsection B of this section, the qui tam plaintiff shall serve on the attorney general by certified mail, return receipt requested, a copy of the complaint and a written disclosure of substantially all material evidence and information the person possesses.  The state may intervene and proceed with the action within one hundred twenty days after it receives both the complaint and the material evidence and information.

D.  The State, for good cause shown, may move the court for extensions of the time during which the complaint remains under seal pursuant to subsection B of this section.  A motion may be supported by affidavits or other submissions in camera.  The defendant is not required to respond to any complaint filed under this section until thirty days after the complaint is unsealed and served on the defendant pursuant to the Arizona Rules of Civil Procedure.

E.  Before the expiration of the one hundred twenty day period or any extensions obtained pursuant to subsection D of this section, the State shall either:

1.  Proceed with the action.

2.  Notify the court that it declines to take over the action, in which case the person bringing the action may conduct the action.

F.  After a person brings an action under this section, no other person may bring a related action based on the facts underlying the pending action. END_STATUTE

START_STATUTE12-3162.  Rights of the parties

A.  If the attorney general proceeds with an action pursuant to section 12-3161, it has the primary responsibility for prosecuting the action and is not bound by an act of the qui tam plaintiff.  The qui tam plaintiff has the right to continue as a party to the action, subject to the limitations set forth in subsections B, C and D of this section.

B.  Notwithstanding the objections of the qui tam plaintiff, the attorney general may dismiss the action for good cause if the qui tam plaintiff has been notified by the attorney general of the filing of the motion and the court has provided the qui tam plaintiff with an opportunity for a hearing on the motion.

C.  Notwithstanding the objections of the qui tam plaintiff, the attorney general may settle the action with the defendant if the court determines, after a hearing, that the proposed settlement is fair, adequate and reasonable under all the circumstances.  On a showing of good cause, the hearing may be heard in camera.

D.  On a showing by the attorney general that unrestricted participation during the course of the litigation by the qui tam plaintiff would interfere with or unduly delay the attorney general's prosecution of the case, would cause the defendant undue burden or unnecessary expense or would be repetitious, irrelevant or for purposes of harassment, the court may limit the qui tam plaintiff's participation by:

1.  Limiting the number of witnesses the qui tam plaintiff may call.

2.  Limiting the length of the testimony of the called witnesses.

3.  Limiting the qui tam plaintiff's cross‑examination of witnesses.

4.  Otherwise limiting the participation by the qui tam plaintiff in the litigation.

E.  If the attorney general elects not to proceed with the action, the qui tam plaintiff has the right to conduct the action.  If the attorney general requests, the attorney general shall be served with copies of all pleadings filed in the action and shall be supplied with copies of all deposition transcripts at the state's expense.  If a qui tam plaintiff proceeds with the action, the court, without limiting the status and rights of the qui tam plaintiff, may permit the attorney general to intervene at a later date on a showing of good cause.

F.  Whether or not the attorney general proceeds with the action, if the attorney general shows that certain actions of discovery by the qui tam plaintiff would interfere with the attorney general's investigation or prosecution of a criminal or civil matter arising out of the same facts, the court may stay the discovery for not more than one hundred twenty days.  A showing shall be conducted in camera.  The court may extend the one hundred twenty day period on a further showing in camera that the attorney general has pursued the criminal or civil investigation or proceedings with reasonable diligence and any proposed discovery in the civil action will interfere with the ongoing criminal or civil investigations or proceedings.

G.  Notwithstanding section 12-3152, the attorney general may elect to pursue its claim through any alternate remedy available to the state, including any administrative proceeding to determine a civil penalty.  If an alternate remedy is pursued in another proceeding, the qui tam plaintiff has the same rights in that proceeding as the qui tam plaintiff would have had if the action had continued under this section.  Any finding of fact or conclusion of law made in the other proceeding that has become final is conclusive on all parties to an action under this section.  For the purposes of this subsection, a finding or conclusion is final if it has been finally determined on appeal to the appropriate court, if all time for filing an appeal with respect to the finding or conclusion has expired or if the finding or conclusion is not subject to judicial review. END_STATUTE

START_STATUTE12-3163.  Awards; apportionment of proceeds; fees and costs

A.  The court shall apportion any proceeds in a civil action filed pursuant to section 12-3161 in the following manner:

1.  If the attorney general proceeds with an action brought by a private party plaintiff under section 12-3162, the qui tam plaintiff shall receive at least fifteen per cent but not more than twenty-five per cent of the proceeds of the action or settlement of the claim depending on the extent to which the qui tam plaintiff substantially contributed to the prosecution of the action. 

2.  If the court finds that the action is based primarily on disclosures of specific information, other than information provided by the qui tam plaintiff, that relates to the allegations or transactions in a criminal, civil or administrative hearing at the state or federal level, in a congressional, legislative, administrative, general accounting office or state auditor's report, hearing, audit or investigation or from news media, the court may award the amount it considers appropriate but shall not award more than ten per cent of the proceeds to the qui tam plaintiff, taking into account the significance of the information and the role of the qui tam plaintiff in advancing the case.    

3.  If the attorney general does not proceed with an action under section 12-3161, subsection A, the qui tam plaintiff shall receive an amount that the court decides is reasonable for collecting the civil penalty and damages.  The amount shall not be less than twenty-five per cent and not more than thirty per cent of the proceeds of the action or settlement and shall be paid out of the proceeds.

4.  If the court finds that the qui tam plaintiff was involved in any planning or carrying out of the acts that are the basis of the action, the court, taking into account the role of the qui tam plaintiff in advancing the case to litigation, may reduce the share of the proceeds the qui tam plaintiff is otherwise entitled to receive pursuant to this subsection.  If the qui tam plaintiff is convicted of criminal conduct arising from the person's role in the violation of section 12-3152, the qui tam plaintiff shall be dismissed from the civil action and not receive any share of the proceeds.  A dismissal of the qui tam plaintiff does not prejudice the right of the attorney general to pursue the civil action.

B.  If the attorney general or the qui tam plaintiff prevails in or settles any qui tam action under section 12‑3152, the court shall award the plaintiff reasonable expenses, costs and attorney fees.

C.  If the attorney general does not proceed with the action and the qui tam plaintiff conducts the action, the court may award the defendant reasonable attorney fees and expenses if the defendant prevails in the action and the court finds that the claim of the qui tam plaintiff was clearly frivolous, clearly vexatious or brought solely for purposes of harassment.

D.  The attorney general may retain a portion of the damages recovered for a state agency out of the proceeds of the action or settlement under this chapter as reimbursement for costs incurred by the attorney general in investigating and bringing a civil action under this chapter, including reasonable attorney fees and investigative costs.  The attorney general shall use retained funds to carry out the provisions of this chapter. END_STATUTE

START_STATUTE12-3164.  Jurisdiction

A court does not have jurisdiction over an action that is:

1.  Brought under section 12-3161 against a member of the senate or house of representatives, a member of the judiciary, an elected official in the executive branch or a member of the governing body of any political subdivision of this state if the action is based on evidence or information that was known to this state when the action was brought.

2.  Based on the public disclosure of allegations or transactions in a criminal, civil or administrative hearing, in an investigation, report, hearing or audit conducted by or at the request of the senate, the house of representatives, the auditor or governing body of a political subdivision of this state or from the news media, unless the action is brought by the attorney general or the person bringing the action is an original source of the information.  For the purposes of this paragraph, "original source" means an individual who has direct and independent knowledge of the information on which the allegations are based, who voluntarily provided the information to this state before filing an action based on that information and whose information provided the basis or catalyst for the investigation, hearing, audit or report that led to the public disclosure.

3.  Based on allegations by a present or former official or employee of this state during the course of the person's employment if the allegations of the action are based substantially on allegations of wrongdoing or misconduct that the official or employee had a duty or obligation to report or investigate within the scope of the person's employment or office and the information or records that the person had access to were the result of the person's employment or office.

4.  Brought based on allegations or transactions that are the subject of a civil suit or an administrative civil penalty proceeding in which this state is already a party. END_STATUTE

START_STATUTE12-3165.  Civil investigative demand

A.  If the attorney general believes that a person has information or is in possession, custody or control of any document or other object that is relevant to an investigation or that would lead to the discovery of relevant information in an investigation of a violation of section 12-3152, the attorney general may issue a civil investigative demand.  The civil investigative demand shall be in writing, shall be served on the person, before bringing or intervening or making an election in an action under section 12-3161 or other false claims law, and shall require the person to produce any documents or objects for inspection and copying.  A civil investigative demand is an administrative subpoena.

B.  The civil investigative demand shall:

1.  Be served on the person in the same manner that is required for service of process in civil actions.

2.  Describe the nature of the conduct constituting the violation under investigation.

3.  Describe the class or classes of any documents or objects to be produced with sufficient definiteness to permit them to be fairly identified.

4.  Prescribe a reasonable date and time that the person shall produce any document or object.

5.  Advise the person that objections to or reasons for not complying with the demand may be filed with the attorney general on or before that date and time.

6.  Designate a person to whom any document or object shall be produced.

7.  Contain a copy of this subsection and subsection C of this section.

C.  The date for production of any requested document or object shall not be less than thirty days after the civil investigative demand is served on the person.

D.  A civil investigative demand may include an express demand for any product of discovery.  A product of discovery includes the original or duplicate of any deposition, interrogatory, document, thing, examination or admission that is obtained by any method of discovery in any judicial or administrative proceeding of an adversarial nature and any digest, compilation and index of any product of discovery.  If a civil investigative demand is an express demand for any product of discovery, a copy of the demand shall be served on the person from whom the discovery was obtained and the attorney general shall notify the person of whom the demand is issued of the date that the copy was served.  A demand for a product of discovery shall not be returned or returnable until thirty days after a copy of the demand is served on the person from whom the discovery was obtained.  Within thirty days after service of the demand, the person from whom the discovery was obtained or the person on whom the demand was served shall serve on the attorney general a copy of any protective order that prevents or restrains disclosure of the product of discovery to the attorney general.  The attorney general may petition the court that issued the protective order to modify the order to allow compliance with the demand.  Disclosure of any product of discovery pursuant to any express demand does not constitute a waiver of any right or privilege that the person making the disclosure may be entitled to invoke to resist discovery of trial preparation materials.

E.  The production of documents and objects in response to a civil investigative demand served pursuant to this section shall be made under a sworn affidavit by the person to whom the demand is directed, or in the case of a person other than a natural person, a person who has knowledge of the facts and circumstances relating to the production and who is authorized to act on behalf of the person.  The affidavit shall state that all of the documentary material required by the demand and in the possession, custody or control of the person to whom the demand is directed has been produced and made available.  The person may substitute copies for originals of all or any part of the documents requested if there is a written agreement between the person served with the civil investigative demand and the Attorney General.

F.  If a person objects to or otherwise fails to comply with a civil investigative demand served under subsection A of this section, the attorney general may file an action in superior court for an order to enforce the demand.  Venue for the action to enforce the demand is in either county or the county in which the person resides, is found or transacts business.  Notice of a hearing on the action to enforce the demand and a copy of the action shall be served on the person in the manner prescribed in the Arizona rules of civil procedure.  If the court finds that the demand is proper, that there is reasonable cause to believe that there may have been a violation of section 12-3151 and that the information sought or document or object demanded is relevant to the violation, the court, subject to any modifications, shall order the person to comply with the demand.

G.  If the person fails to comply with an order entered pursuant to subsection F of this section, the court may do any of the following:

1.  Find the person in contempt of court.

2.  Grant injunctive relief against the person to whom the demand is issued to restrain the conduct that is the subject of the investigation.

3.  Grant any other relief.

H.  Any person who has received a civil investigative demand or, in the case of an express demand for any product of discovery, the person on whom the discovery was obtained may file a petition for an order of the court to modify or set aside a civil investigative demand.  The petition may be filed in superior court in either County or the county in which the person resides, is found or transacts business or, in the case of a petition to modify an express demand for any product of discovery, the petition shall be filed in the court in which the proceeding was pending when the product of discovery was obtained.  Any petition under this subsection must be filed within thirty days after the date of service of the civil investigative demand or before the return date specified in the demand, whichever date is earlier, or within a longer period as may be prescribed in writing by the investigator identified in the demand.  The petition shall specify each ground on which the petitioner relies in seeking relief and may be based on any failure to comply with this section or on any constitutional or other legal right or privilege of the person.  During the pendency of the petition, the court may stay the running of the time allowed for compliance with the demand, in whole or in part, except that the person filing the petition shall comply with any portion of the demand not sought to be modified or set aside.

I.  Any documents and objects produced pursuant to this section may be used in connection with any civil action brought under section 12-3161 and for any use that is consistent with the law and rules of the attorney general, including:

1.  Use in connection with internal attorney general memoranda and reports.

2.  Communications between the attorney general and a federal, state, or local governmental agency or a contractor of a federal, state or local governmental agency, undertaken in furtherance of an attorney general investigation or prosecution of a case.

3.  Interviews of any qui tam plaintiff or other witness.

4.  Oral examinations.

5.  Depositions.

6.  Preparation for and response to civil discovery requests.

7.  Introduction into the record of a case or proceeding applications, motions, memoranda and briefs submitted to a court or other tribunal.

8.  Communications with government investigators, auditors, consultants and experts and the counsel of other parties, arbitrators and mediators concerning an investigation, case or proceeding.

J.  The attorney general may share any documents and objects obtained under this section with any qui tam plaintiff if the attorney general determines it is necessary as part of any false claims investigation.  Before using or sharing documents and objects obtained under this section, the attorney general may require that the person agree to an order of the court protecting the documents or objects, or any information contained in the documents or objects, from disclosure by that person.  If the producing party designates documents or objects as trade secrets or other confidential research, development or commercial information, the attorney general shall either:

1.  Require that the person with whom documents or objects are shared be prohibited from disclosing the documents or objects, or any information contained in the documents or objects.

2.  Petition the court for an order directing the producing party to either appear and support the designation or withdraw the designation.

K.  The attorney general may designate an employee of the attorney general's office as the custodian of documents and objects.

L.  Except as otherwise provided in this section, no documents or objects, or copies of any documents or objects, that are in the possession of the custodian designated by subsection K of this section shall be available for examination by any person other than an employee of the attorney general's office.  This subsection shall not apply:

1.  If consent is given by the person who produced the documents or objects, or in the case of any product of discovery produced pursuant to an express demand, consent is given by the person from whom the discovery was obtained.

2.  To disclosure to any other federal or state agency for use by that agency in furtherance of its statutory responsibilities if an application is made by the attorney general to the court showing a substantial need for the use of the documents or objects by the agency in furtherance of its statutory responsibilities.

M.  Documents or objects shall be available for examination by the person who produced the documents or objects or by a representative of the person who is authorized by the person to examine the documents or objects, while in the possession of the custodian designated pursuant to subsection K of this section and under reasonable terms and conditions prescribed by the attorney general.

N.  If any documents or objects are produced by any person in the course of any investigation pursuant to a civil investigative demand pursuant to this section and any case or proceeding before any court arising out of the investigation, or any proceeding before any agency involving the documents or objects, has been completed, or no case or proceeding in which the documents or objects may be used has been commenced within a reasonable time after completion of the investigation, the custodian, on written request of the person who produced the documents or objects, shall return to the person any documents or objects that have not passed into the control of any court or agency.

O.  The Arizona rules of civil procedure apply to this section to the extent that the rules are not inconsistent with the provisions of this section. END_STATUTE

START_STATUTE12-3166.  Statute of limitations; burden of proof; venue; procedure

A.  A civil action pursuant to section 12-3161 shall not be commenced more than six years after the date of any violation of section 12-3152 was committed or more than three years after the date when facts material to the right of action are known or reasonably should have been known by the official charged with responsibility to act in the circumstances, but in no event more than ten years after the date that the violation is committed, whichever occurs later.

B.  If the attorney general elects to intervene and proceed with an action brought under section 12-3161, the state may file its own complaint or amend the complaint of a qui tam plaintiff to clarify or add detail to the claims with respect to which the state is intervening and to add any additional claims for which the state contends it is entitled to relief.  For the purpose of subsection A of this section, any state pleading shall relate back to the filing date of the complaint of the person who originally brought the action, to the extent that the claim of the State arises out of the conduct, transactions or occurrences set forth, or attempted to be set forth, in the prior complaint of that person.

C.  In any action brought under section 12-3161, the attorney general or the qui tam plaintiff is required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.

D.  Notwithstanding any other law, a final judgment rendered in favor of the state in a criminal proceeding charging false statements or fraud, whether on a verdict after trial or on a plea of guilty or no contest, estops the defendant from denying the essential elements of the offense in any action that involves the same transaction as in the criminal proceeding and that is brought under section 12-3161.

E.  Venue for any action brought pursuant to section 12-3161 is in either County or in any county in which a claim originated, or in which any statement or record was made, or acts were done or services or property were rendered in connection with any act constituting part of the violation of this chapter.

F.  If the United States or any state or local government is named as a coplaintiff in an action brought under section 12-3161, a seal on the action ordered by the court under section 12-3161 does not preclude this state or the person bringing the action from serving the complaint, any other pleadings or the written disclosure of substantially all material evidence and information possessed by the person bringing the action on the law enforcement authorities that are authorized under the law of the coplaintiff government to investigate and prosecute the actions on behalf of that coplaintiff government, except that the seal applies to the law enforcement authorities that are served to the same extent as the seal applies to other parties in the action. END_STATUTE

START_STATUTE12-3167.  Remedies under other laws; legislative construction

A.  The provisions of this article are not exclusive and the remedies provided for in this chapter are in addition to any other remedies provided for under any other law including common law.  A criminal or administrative action does not have to be brought against any person as a condition for establishing civil liability pursuant to this chapter.

B.  This article shall be interpreted and construed so as to be consistent with the federal false claims act, 31 United States Code section 3729, and any amendments to that act. END_STATUTE

START_STATUTE12-3168.  Reporting

On or before February 1 of each year, the attorney general shall submit to the joint legislative budget committee, the speaker of the house of representatives and the president of the senate a report on the number of cases under this chapter pending in this state and the number of cases pending in other jurisdictions involving this state, the number of cases under this chapter that were settled, the number of cases in which judgment was entered and the amount of proceeds paid to qui tam plaintiffs during the previous calendar year.  The report of the terms and disbursements in any settlement agreement or final order or judgment in a case filed under this chapter shall include the percentage of the proceeds and the amount paid to any qui tam plaintiff under section 12-3161. END_STATUTE

START_STATUTE12-3169.  Rules

The attorney general may adopt rules necessary to implement this chapter. END_STATUTE

ARTICLE 3.  EMPLOYER INTERFERENCE

START_STATUTE12-3171.  Employer interference with employee disclosures; liability; civil action

A.  An employer shall not discharge, demote, suspend, threaten, harass, deny promotion to or in any other manner discriminate against an employee, contractor or agent in the terms and conditions of employment because of lawful acts done by the employee, contractor or agent on behalf of the employee or others in disclosing information to a government or law enforcement agency or in furthering a false claims action, including investigation for, initiation of, testimony for or assistance in an action filed or to be filed pursuant to section 12-3161 or 12-3162.

B.  An employer who violates subsection A of this section is liable for all relief necessary to make the employee, contractor or agent whole, including reinstatement with the same seniority status that the employee would have had but for the discrimination, two times the amount of back pay, interest on the back pay and compensation for any special damage sustained as a result of the discrimination.  The defendant shall be required to pay litigation costs and reasonable attorney fees.  An employee may bring an action in superior court for the relief provided in this section. END_STATUTE

Sec. 2.  Application

This act applies to any violation of section 12-3152, Arizona Revised Statutes, as added by this act, that occurred before the effective date of this act if the limitation period set forth in section 12-3166, Arizona Revised Statutes, as added by this act, has not lapsed.