Complaint,Petition: Best Help Homecare, Inc., Careaide Direct Inc., Carefirst Cdpap, Corp, Easy Choice Agency Inc., Harbor Care Llc, Home Choice Llc, Safe Haven Home Care, Inc., Silver Lining Homecare Agency, Inc. v. New York State Department Of Health, Mary T. Bassett, Md, Mph

On July 05, 2022 a Complaint,Petition was filed involving a dispute between Best Help Homecare, Inc., Careaide Direct Inc., Carefirst Cdpap, Corp, Easy Choice Agency Inc., Harbor Care Llc, Home Choice Llc, Safe Haven Home Care, Inc., Silver Lining Homecare Agency, Inc., and Mary T. Bassett, Md, Mph, New York State Department Of Health, for Special Proceedings - CPLR Article 78 in the District Court of Albany County.

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FILED: ALBANY COUNTY CLERK 07/05/2022 11:00 AM INDEX NO. 905064-22
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ALBANY
____________________________________

In the Matter of the Application of

BEST HELP HOMECARE, INC; CAREAIDE DIRECT
INC.; CAREFIRST CDPAP, CORP; EASY CHOICE
AGENCY INC.; HARBOR CARE LLC; HOME
CHOICE LLC; SAFE HAVEN HOME CARE, INC;
AND SILVER LINING HOMECARE AGENCY, INC.,

Petitioners, VERIFIED PETITION

-against-

NEW YORK STATE DEPARTMENT OF HEALTH, Index No.
and MARY T. BASSETT, MD, MPH, in her official
capacity as Commissioner of Health of the State of New RJI No.
York,

Respondents,

For a Judgment Pursuant to Article 78 of the N.Y. Civil
Practice Law & Rules (“CPLR”)

____________________________________

Petitioners Best Help Homecare, Inc; CareAide Direct; Carefirst CDPAP, Corp; Easy

Choice Agency Inc.; Harbor Care LLC; Home Choice LLC; Safe Haven Home Care, Inc.; and

Silver Lining Homecare Agency (collectively, “Petitioners”), by and through undersigned

counsel, submit this Verified Petition and allege, on personal information as to their own acts

and on information and belief as to other matters, as follows.

INTRODUCTORY STATEMENT

1. This special proceeding, filed pursuant to NY CPLR 7801, et seq. (“Article 78”),

arises out of the New York State Department of Health’s (“DOH”) denial of Petitioners’

administrative appeal relating to Petitioners’ request under New York’s Freedom of Information

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Law (“FOIL”). The appeal denial constituted final agency action and improperly deprived

Petitioners of access to records that would illuminate the evaluation of bids submitted in

response to the DOH’s Request for Offers #20039 (the “RFO”), concerning New York State

Fiscal Intermediaries for the Consumer Directed Personal Assistance Program (“CDPAP”). See

Appendix at 1-3.

2. Petitioners are fiscal intermediaries (“FIs”) that participate in the CDPAP, a

Medicaid program designed to permit chronically ill and/or physically disabled individuals

(referred to as “consumers”) receiving home care services greater flexibility and freedom of

choice in obtaining such services from consumer-selected caregivers or personal assistants

(“PAs”). The FIs then act as intermediaries between consumers and PAs, providing services

under the CDPAP such as processing payroll, taxes and withholdings for PAs; maintaining

records regarding personnel and services rendered; complying with workers’ compensation,

disability and unemployment requirements; and monitoring consumers’ health and ability to

fulfill their responsibilities under the program.

3. Petitioners all submitted offers in response to the RFO but were not selected to

receive awards. Petitioners timely challenged the DOH’s awards under the RFO by filing bid

protests with the Office of the State Comptroller (“OSC”) demonstrating that the DOH’s

evaluation process was fundamentally flawed because, among other reasons, it was arbitrary and

inconsistent, and failed to even ask for or consider vital information about offerors.

4. To support their OSC protests and discern why Petitioners’ offers were not

accepted and others were, Petitioners filed a FOIL request seeking categories of documents that

included the other offers submitted (the “Technical Offers”) and the DOH’s evaluation and

scoring of all offers (the “Technical Offer Evaluation Tools”).

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5. After multiple delays, the DOH completed its production approximately eleven

months after Petitioners submitted their FOIL request. Despite FOIL’s commitment to open

government records with only narrowly construed exemptions, the production is deficient

because of excessive redactions to many of the Technical Offers and because of complete

redactions to all substantive comments DOH reviewers made on the Technical Offer Evaluation

Tools.

6. Petitioners timely filed an administrative appeal with the DOH Records Access

Appeals Office, contesting the redactions, but on March 4, 2022 the DOH denied Petitioners’

appeal in its entirety and notified Petitioners that they could obtain judicial review of the

agency’s determination pursuant to Article 78. Petitioners now bring this proceeding to compel

DOH to fulfill its statutory obligation and to provide the unredacted records to which Petitioners

are entitled under FOIL and the State Finance Law.

THE PARTIES

7. Petitioners are FIs that were denied awards under RFO #20039 and filed timely

bid protests with the OSC. Seeking documents that would support their OSC protests,

Petitioners—collectively and through counsel—submitted a FOIL request to the DOH.

8. Petitioner Best Help Homecare, Inc is a New York corporation with its principal

place of business in Brooklyn. Best Help’s consumers comprise a broad array of nationalities,

cultures, and religions, and likewise its staff is diverse and multilingual, speaking Creole,

Spanish, and Russian, among other languages.

9. Petitioner CareAide Direct Inc. is a New York corporation with its principal place

of business in New York City. CareAide Direct primarily cares for underserved populations of

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elderly and disabled consumers in Harlem and throughout the five boroughs. It maintains a

diverse workforce including employees speaking Spanish, Polish, Arabic, Italian, and Russian

10. Petitioner Carefirst CDPAP, Corp is a New York corporation with its principal

place of business in Nassau County. Carefirst assists consumers in underserved areas in Nassau,

Queens, and the Bronx.

11. Petitioner Easy Choice Agency Inc. is a New York corporation with its principal

place of business in Queens. Easy Choice serves a multicultural population, including Russian,

Spanish, Turkish, and Armenian speakers primarily located in Queens.

12. Petitioner Harbor Care LLC is a New York limited liability company with its

principal place of business in Brooklyn. Harbor Care serves individuals with physical, mental,

and behavioral disabilities and employs staff fluent in Spanish, Russian, Creole, French, Urdu,

and Uzbek.

13. Petitioner Home Choice LLC is a New York limited liability company with its

principal place of business in the Bronx. Home Choice serves a diverse, multicultural, and

multilingual population.

14. Petitioner Safe Haven Home Care, Inc is a New York corporation with its

principal place of business in New York City. Safe Haven is owned and operated by a registered

nurse, and its multilingual employees serve a diverse community that includes Spanish, French,

and Creole speakers.

15. Petitioner Silver Lining Homecare Agency, Inc. is a New York corporation with

its principal place of business in Brooklyn. Silver Lining serves the five Boroughs and Long

Island and works with Holocaust survivors and their families as well as refugees from Eastern

Europe.

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16. Respondent DOH is an agency of the State of New York with its principal office

in Albany.

17. Respondent Mary T. Bassett is the Commissioner of Health of the State of New

York and is sued in her official capacity.

18. Petitioners are providing notice of this proceeding to the Attorney General of the

State of New York, the Hon. Leticia James, pursuant to CPLR § 7804(c).

JURISDICTION AND VENUE

19. The Court has jurisdiction over this proceeding pursuant to Article 78 and Section

89(4)(b) of the NY Public Officers Law (“FOIL”).

20. Venue is proper in this Court because Respondent DOH has its principal office in

Albany and, upon information and belief, Respondents made the determination complained of in

Albany.

FACTUAL ALLEGATIONS

RFO #20039

21. FIs in New York currently contract with Medicaid managed care organizations

(under Medicaid Managed Long Term Care (“MLTC”) plans) and county social services

departments to provide CDPAP services. However, in 2019, amendments to New York’s Social

Services Law (“SSL”) Section 365-f introduced a procurement process for FI contracts with the

DOH.

22. The SSL amendments instructed the DOH to enter into contracts with eligible

contractors based on their ability to provide FI services, experience, cultural and language

competencies specific to the population served, and geographic distribution particularly in

underserved areas, among other factors.

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23. Section 365-f of the SSL placed no limit on the number of FIs to which contracts

could be awarded, and it did not include reducing the number of FIs as a goal of the procurement

process. The goal of the CDPAP remained the same: to permit consumers greater flexibility and

freedom of choice in obtaining home care services.

24. On or about December 18, 2019, the DOH issued the RFO for FI contracts, which

revealed the DOH’s intent to award the fewest number of contracts possible. See Appendix at 4,

31.

25. In or about February and March 2020, Petitioners each submitted the required

Administrative and Technical Offers in response to the RFO.

26. The Technical Offers included, as requested, narrative descriptions from the

offerors regarding their experience providing FI services, best practices in delivering FI services,

organizational structure, fiscal monitoring and oversight, and quality monitoring and reporting.

27. In total, 395 FIs submitted offers, and DOH determined that 373 of those had met

certain minimum qualifications.

28. Each of those 373 offers was reviewed by three DOH evaluators, from a team of

fifteen total evaluators.

29. The DOH provided general training concerning the RFO and instructed evaluators

to assign a numeric score, on a scale of 0 (not provided) to 5 (excellent), to offerors’ narrative

responses for each RFO category. In addition, evaluators were permitted, but not required, to list

the offerors’ strengths and weaknesses in each category. See Appendix at 40-60.

30. The ranking system contained generic descriptions of each score but no specific

or concrete guidance. For example, a score of 3 (good) meant “the offer demonstrated an

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adequate level of performance and approach” whereas 4 (very good) meant “the offer clearly and

concisely demonstrated a high level of performance and approach.” Id. at 47.

31. The DOH purportedly averaged the raw scores for each criterion across the three

evaluators, multiplied the average score by the weight for each category or categories, and added

the weighted scores to find the total overall score for each offer.

32. On or about February 11, 2021, Petitioners Carefirst and Home Choice received

letters from the DOH stating—for the first time—that their offers were disqualified and had not

even been evaluated because of certain clerical or scanning errors that had occurred with their

offer transmissions to the DOH.

33. On or about February 11, 2021, the remaining Petitioners received letters from

DOH stating that they were not selected as contract recipients.

34. The DOH had selected only 68 FIs to receive contract awards pursuant to the

RFO—a reduction of approximately 85 percent of the current number of FIs.

35. The non-award letters indicated that the FIs that were not selected to receive

contracts, including Petitioners, would be terminated from their participation in the CDPAP and

their consumers transferred to other FIs within 90 days of the DOH finalizing and the OSC

approving the contracts.

36. This concerned Petitioners greatly, not only for the pending loss of their

businesses, but also for the consumers and PAs who depend upon Petitioners. Many of those

individuals reside in underserved areas and/or are recent immigrants to the United States and

depend on Petitioners to provide culturally sensitive and multi-lingual services.

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37. In response to Petitioners’ requests, the DOH provided what it termed written

debriefings, which included only the individual Petitioner’s score and rank (with the exception of

Carefirst and Home Choice) and brief information regarding the technical evaluation generally.

38. DOH subsequently provided Petitioners with their “Technical Proposal Score

Tool” summary, which contained their average numerical scores for each category.

39. Petitioners objected that the purported written debriefings were insufficient, citing

New York’s State Finance Law (“SFL”), which requires the DOH to provide unsuccessful

offerors with debriefings that “shall include, but need not be limited to: (A) the reasons that the

proposal, bid or offer submitted by the unsuccessful offerer was not selected for award; (B) the

qualitative and quantitative analysis employed by the agency in assessing the relative merits of

the proposals, bids or offers; (C) the application of the selection criteria to the unsuccessful

offerer’s proposal; and (D) when the debriefing is held after the final award, the reasons for the

selection of the winning proposal, bid or offer. The debriefing shall also provide, to the extent

practicable, general advice and guidance to the unsuccessful offerer concerning potential ways

that their future proposals, bids or offers could be more responsive.” SFL § 163(9)(c)(iv).

40. The RFO also indicated that offerors would be provided with their strengths and

weaknesses.

41. In March and April 2021, the DOH held a series of oral debriefings with each

Petitioner. The debriefings proved to be an administrative formality and failed to provide

Petitioners with sufficient rationale for their non-awards and the selection of the 68 FIs.

42. While the DOH verbally shared certain evaluator notes on some Petitioners’

strengths and weaknesses in a limited number of categories, DOH representatives instructed

Petitioners to submit FOIL requests for the additional information they sought.

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Petitioners’ FOIL Request and OSC Protests

43. On March 5, 2021, Petitioners collectively, through counsel, submitted a FOIL

request to the DOH Records Access Office, seeking documents relating to the RFO (the “FOIL

Request”). See Appendix at 61-62.

44. The FOIL Request sought copies of, in relevant part, the full Technical Offer that

the DOH received from each bidder and the Technical Offer Evaluation Tool documents

containing narrative descriptions of the strengths and weaknesses of each offer and scoring by

each evaluator.1

45. Petitioners believed (and still maintain) that reviewing the narrative Technical

Offers and DOH’s evaluation and scoring of Petitioners’ own offers and of the successful

bidders’ offers might shed light on why the successful bidders were selected and Petitioners were

not, as the SFL guarantees. It also may reflect DOH’s flawed process in evaluating the offerors’

submissions.

46. In the meantime, in or about March and April 2021, Petitioners each submitted

initial protests to the OSC.

47. The OSC protests challenged the DOH’s evaluation process for the RFO as

fundamentally flawed, citing three primary reasons: the DOH failed to make the statutorily

required responsibility determination for proposed contractors before providing awards, which

resulted in contract awards offered to unsuitable FIs, including those with criminal indictments

and flawed histories; the DOH arbitrarily reduced the population of FIs from approximately 450

1
The FOIL Request also sought the Administrative Offers; “Technical Proposal Score Tool” documents
showing average and final evaluation scores for each bidder; training materials provided to evaluators;
correspondence between the DOH and any bidder requesting additional information during the initial
evaluation; and documents reflecting the process DOH used to select evaluators, but those items are not at
issue in this proceeding.

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to 68 without considering if the selected FIs could adequately serve the approximately 139,000

consumers and more than 100,000 PAs participating in the CDPAP; and the evaluation process

was arbitrary and capricious with fifteen different reviewers assigning scores of 0-5 for various

categories without any concrete guidance, resulting in highly inconsistent scoring and an

inherently unfair process.

48. Through their FOIL Request, Petitioners also sought to review other bidders’

offers and the scores and evaluator notes for all bids to support their OSC protests and their

beliefs that the scoring was arbitrary, with similar or virtually identical narratives receiving

divergent scores, and that the RFO process was unfair.

49. However, DOH has denied Petitioners access to the Technical Offers and

Technical Offer Evaluation Tools through its excessive and unlawful redactions to those

documents.

DOH’s Responses to FOIL Request

50. The DOH acknowledged receipt of Petitioners’ FOIL Request on March 8, 2021.

See Appendix at 63. After sending multiple extension of time letters, the DOH ultimately

produced documents on four occasions and completed its production in February 2022.

51. In or about April, June, and August 2021, the DOH sent extension of time letters,

stating that it was reviewing records for FOIL exemptions, legal privileges, and responsiveness.

See Appendix at 64-66.

52. Petitioners objected to the ongoing delay, via letter dated August 23, 2021 to the

DOH Records Access Office, and stated that if DOH failed to produce documents by August 31,

Petitioners would consider their request constructively denied and would appeal accordingly.

See Appendix at 67-68.

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53. In September 2021, the DOH agreed to begin producing materials. See Appendix

at 69-72.

The Technical Offers

54. The first production, received on or about September 23, 2021, included most of

the Technical Offers, but many were heavily or entirely redacted. The DOH’s cover letter

regarding the production contained no explanation of the redactions. Id. at 71-72.

55. There were inconsistencies in the extent of the redactions across different

Technical Offers. In many instances, all or nearly all of the Technical Offer narrative is

redacted; in others whole pages and sections are redacted; and some offers have limited

redactions or none whatsoever.

56. This includes full or extensive redactions of sections describing offerors’

experience operating as FIs, their provision of cultural and language competencies needed by the

consumers they serve, their ability to process payroll and comply with various laws concerning

PAs, and their practices for monitoring the consumer-PA relationship. Such information is

clearly not exempt from disclosure and is essential to evaluating why the 68 successful offers

might have been accepted over Petitioners’ offers.

57. For example, the entire Technical Offer narratives submitted by successful

bidders Heart to Heart Home Care, Inc., High Standard Home Care Inc., and Link Homecare are

fully redacted. See Appendix at 73-132.

58. All but two sentences are redacted from the Technical Offer narrative of awardee

Horizon Home Care Services, Inc.

59. Only the executive summary of Apple Best Home Care Agency Inc.’s Technical

Offer narrative is visible.

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60. Infiniti Home Care’s Technical Offer narrative, which exceeds 100 pages, has

only three closing paragraphs not redacted.

61. At the same time, however, Technical Offers submitted by successful bidders

Bena Home Care Agency Inc., First Chinese Presbyterian Community Affairs Home Attendant

Corporation, and HSM Personal Care Corp. have no redactions.

62. The RFO had notified offerors that their offers would become State records

available to the public pursuant to FOIL. Offerors could “clearly and specifically designate”

portions of their offers that they believed constituted proprietary information exempt from FOIL.

However, the RFO noted: “Blanket assertions of proprietary material will not be accepted, and

failure to specifically designate proprietary material may be deemed a waiver of any right to

confidential handling of such material.” See RFO § 5.9 (Appendix at 20).

63. Upon information and belief, the DOH provided offerors the opportunity to

suggest redactions to portions of their offers before they were disclosed and to submit detailed

justifications that certain portions would cause substantial injury if disclosed.

64. Some Petitioners also received letters from DOH notifying them of another

party’s FOIL request for all offers submitted in response to the RFO and allowing Petitioners to

suggest appropriate redactions. See Appendix at 133-134.

65. The DOH noted in those letters that offerors could not “withhold entire

documents from disclosure” and provided the following directive: “Your written justification for

a POL §89(5) exception from disclosure must be as detailed and specific as possible. The mere

overall claim that material is trade secret, confidential, proprietary, or constitutes critical

infrastructure is not sufficient enough to allow us to grant the material an exception from

disclosure. Relevant information might include commercial value of the requested information

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to competitors and the cost of acquiring it through other means. Your submission should identify

the specific material for which the exception is being sought. Please refer to the specific page

numbers, letters, titles, and sections of your documents to identify information for which you are

requesting an exception. It is suggested that you include a separate justification for each section

when appropriate.” Appendix at 133.

66. Accordingly, the Petitioners that responded made appropriate redactions to their

Technical Offers, limiting them to information that would cause substantial competitive injury if

disclosed, such as MCO contracts and negotiated rates, contractor business relationships,

employee names and resumes, and certain sensitive financial information.

67. On October 22, 2021, Petitioners attempted to appeal the redactions in the DOH’s

first production, noting that they exceeded the scope of exemptions permissible under FOIL,

without any rationale. See Appendix at 135-137.

68. On or about November 8, 2021, the DOH Records Access Appeals Officer

claimed that Petitioners did not have appeal rights, but he remanded the matter to the Records

Access Office to provide the statutory basis for redactions. See Appendix at 138-139.

69. DOH produced additional documents in or about November 2021 and also stated

that certain information had been redacted pursuant to FOIL exemptions, including where

disclosure of information submitted by a commercial enterprise would cause substantial injury to

the enterprise’s competitive position pursuant to Section 87(2)(d) of FOIL. DOH did not

elaborate on these generic reasons. See Appendix at 140-141. It listed the exemptions but did

not state which exemption applied to which portion of which Technical Offer and why.

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70. In November and December 2021, Petitioners again attempted to appeal the

excessive and unlawful redactions, but on both occasions DOH contended that Petitioners would

not have appeal rights until the rolling production was complete. See Appendix at 142-149.

71. DOH sent another extension of time letter on or about January 12, 2022.

Petitioners objected to the ongoing delay, via letter dated January 18, 2022 to the DOH Records

Access Office, and stated that if DOH failed to produce additional documents by January 21,

Petitioners would consider their request constructively denied and appeal accordingly. See

Appendix at 150-153.

The Technical Offer Evaluation Tools

72. On or about January 19, 2022, DOH informed Petitioners that DOH was sending

a third partial production. See Appendix at 154-155.

73. That production included some of the completed Technical Offer Evaluation

Tools.

74. The DOH’s instructions to evaluators had stated that their comments, including

those addressing strengths and weaknesses, were subject to public disclosure under FOIL. See

Appendix at 42.

75. However, the DOH redacted all comments that evaluators had made regarding

offerors’—including Petitioners’—strengths and weaknesses from the Technical Offer

Evaluation Tools it produced, allegedly pursuant to Section 87(2)(g) of FOIL. See Appendix at

156-185 for representative examples.

76. On or about February 11, 2022, DOH informed Petitioners that DOH was sending

its fourth and final production and that Petitioners could appeal any denial of access to records.

See Appendix at 186-187.

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Petitioners’ Administrative Appeal

77. On February 25, 2022, Petitioners filed an administrative appeal by letter to the

DOH Records Access Appeals Office. See Appendix at 188-192.

78. In their appeal, Petitioners again contended that DOH’s redactions of Technical

Offers and Technical Offer Evaluation Tools were excessive and contrary to law, and they cited

DOH’s obligation to provide particularized, specific justifications for each redaction—that is,

more than conclusory or generic explanations or quoting the statutory language of the

exemption—and evidence that disclosure of commercial information will cause injury.

79. Petitioners’ appeal requested that the DOH promptly provide a new set of

materials without the overbroad and unjustified redactions, beginning with the Technical Offers

submitted by the 68 successful bidders and the Technical Offer Evaluation Tools for the 68

successful bidders and the Petitioners.

80. On March 4, 2022, the DOH denied Petitioners’ administrative appeal in its

entirety and advised Petitioners that judicial review of the DOH’s decision could be obtained

pursuant to Article 78. See Appendix at 1-3.

81. The DOH’s Records Access Appeals Officer stated that he had reviewed the

redactions and found them all to be proper, including, in relevant part, redactions made pursuant

to subsections 87(2)(d) and (g) of FOIL, exempting from disclosure information a commercial

enterprise submitted to an agency that would cause substantial injury to the enterprise’s

competitive position if disclosed, and intra-agency materials, respectively.

82. The DOH again declined to provide particularized, specific justifications for each

redaction.

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83. Respondents’ denial of Petitioners’ administrative appeal constituted final agency

action.

84. Petitioners have exhausted their administrative remedies, as required by Article

78, and have no adequate remedy at law.

85. Without the unredacted Technical Offers and Technical Offer Evaluation Tools,

to which FOIL guarantees public access, Petitioners cannot assess why others were selected to

receive FI contracts and Petitioners were not, as the SFL requires.

Subsequent Attempts to Correct Flawed RFO Process

86. In response to persistent criticism of the DOH’s RFO process, including concerns

regarding transparency, fairness, network adequacy, and arbitrariness, the New York State

Legislature twice amended SSL § 365-f and altered the eventual outcome of the RFO.

87. In April 2021, an amendment to the SSL required the DOH to conduct a survey of

qualified offerors and make a limited number of additional awards based on objective criteria set

forth in the revised statute.

88. Concerns regarding the drastic reduction in FIs resulting from the RFO persisted.

In April 2022, a second amendment provided for additional contract awards for qualified offerors

that meet certain legislatively prescribed size thresholds.

89. Most petitioners are smaller businesses that will likely not satisfy the criteria set

forth in the April 2022 amendment and therefore remain without a means to contract with DOH.

Petitioners will continue to pursue their OSC protests and are entitled, under FOIL and the SFL,

to substantially unredacted Technical Offers and wholly unredacted Technical Offer Evaluation

Tools to support those protests.

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CAUSES OF ACTION

COUNT I
Wrongful Denial of Access to Information;
Judgment Pursuant to CPLR Section 7803

90. Petitioners incorporate by reference and restate all the preceding paragraphs of

this Petition as if set forth fully herein.

91. FOIL requires Respondents to make available the records Petitioners requested—

namely, the Technical Offers and Technical Offer Evaluation Tools.

92. Agency records are presumptively open to the public, and Respondents have the

burden of proving, through particularized and specific justification, that an exemption from

disclosure applies.

93. The State Finance Law also obligates Respondents to make available the records

Petitioners requested, because the records contain information regarding the reasons Petitioners

were not selected for awards and 68 other offerors were, as well as the qualitative and

quantitative analysis Respondents employed in evaluating the offers.

94. Respondents have wrongfully denied Petitioners access to the records through the

impermissible redactions exceeding the scope of statutory exemptions, and through

Respondents’ appeal determination, as set forth in FOIL Section 89(4).

95. Respondents have not met their burden to specifically justify the redactions and

exemptions from disclosure, instead referencing only the statutory citations and claiming that

exemptions apply generally.

96. Respondents’ final determination denying Petitioners access to records without

the excessive and unlawful redactions should be overturned, because it is arbitrary, capricious,

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and based on errors of law, including improperly invoked FOIL exemptions, and it constitutes a

failure to perform Respondents’ duties imposed by FOIL and the SFL.

97. Petitioners have exhausted their administrative remedies and have no adequate

remedy at law.

98. Petitioners have not requested the relief sought through this proceeding in any

other prior application or forum.

99. Respondents should be compelled to produce in a timely manner substantially

unredacted copies of the Technical Offers, beginning with those submitted by the 68 successful

bidders, and completely unredacted Technical Offer Evaluation Tools, beginning with those for

the 68 successful bidders and Petitioners.

100. Any remaining redactions to Technical Offers should be minimal—limited to

items with commercial value such as employee names, contact information, and resumes, and the

contract information with MCOs and/or businesses with which the FIs contract—and each

should be justified by specific explanations, including how disclosure will cause injury if

Respondents invoke FOIL Section 87(2)(b).

101. If the Court declines to require production of all documents Petitioners seek

without additional information, or if Respondents continue to claim exemptions, Petitioners

respectfully submit that the Court should conduct an in camera review of those documents to

determine whether the DOH may lawfully withhold any portions thereof.

102. Petitioners are entitled to reimbursement of their attorney’s fees and costs

pursuant to FOIL Section 89(4)(c), because Respondents had no reasonable basis for denying

access to the documents Petitioners sought.

18 of 30
FILED: ALBANY COUNTY CLERK 07/05/2022 11:00 AM INDEX NO. 905064-22
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/05/2022

103. Respondents’ unreasonable denial is underscored by, inter alia, the complete or

nearly compete redaction of certain Technical Offers and complete redaction of comments on the

Technical Offer Evaluation Tools, despite previous and repeated statements that the requested

documents were subject to FOIL disclosure.

COUNT II
Application for a Stay, Pursuant to CPLR § 7805

104. Petitioners incorporate by reference and restate all the p

Case Info

Judge

Gerald Connolly Track Judge’s New Case

Case No.

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Document Filed Date

July 05, 2022

Case Filing Date

July 05, 2022

County

Parties

ADAMS , DEREK MICHAEL Attorney for the Plaintiff
Best Help Homecare, Inc. Plaintiff
CareAide Direct Inc. Plaintiff
Carefirst CDPAP, Corp Plaintiff
Easy Choice Agency Inc. Plaintiff
HAMILTON, STACEY ANN Attorney for the Defendant
Harbor Care LLC Plaintiff
Home Choice LLC Plaintiff
Mary T. Bassett, MD, MPH Defendant
New York State Department of Health Defendant
ROCK, ROBERT J. Attorney for the Defendant
Safe Haven Home Care, Inc. Plaintiff
Silver Lining Homecare Agency, Inc. Plaintiff
ROSEMARIE HEWIG Attorney
BRIAN CULNAN Attorney
DENNIS BUCKLEY Attorney
TARA KERSEY Attorney

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Complaint,Petition: Best Help Homecare, Inc., Careaide Direct Inc., Carefirst Cdpap, Corp, Easy Choice Agency Inc., Harbor Care Llc, Home Choice Llc, Safe Haven Home Care, Inc., Silver Lining Homecare Agency, Inc. v. New York State Department Of Health, Mary T. Bassett, Md, Mph

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