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FILED: ALBANY COUNTY CLERK 07/05/2022 11:00 AM INDEX NO. 905064-22
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/05/2022
State of New York
Supreme Court – 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,
-against-
NEW YORK STATE DEPARTMENT OF HEALTH, and MARY T.
BASSETT, MD, MPH, in her official capacity as Commissioner of
Health of the State of New York,
Respondents.
Index No.
APPENDIX
POTOMAC LAW GROUP PLLC
Derek Adams
Attorney for Petitioners
dadams@potomaclaw.com
Dated: July 5, 2022
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APPENDIX TABLE OF CONTENTS
New York State Department of Health (“DOH”), Freedom of Information Law (“FOIL”)
Final Determination Letter (Rendered March 4, 2022), by David J. Spellman,
DOH Records Access Appeals Officer (“Appeals Officer”) ...................................... Apx. 1
New York State Department of Health, Request for Offers (“RFO”) # 20039, “New York
State Fiscal Intermediaries for the Consumer Directed Personal Assistance
Program (Issued December 18, 2019) ........................................................................ Apx. 4
Technical Offer Evaluation Tool .......................................................................................... Apx. 40
FOIL Request, dated March 5, 2021, from Attorneys for Petitioners, to DOH Records
Access Office ............................................................................................................ Apx. 61
DOH Acknowledgement Letter, dated March 8, 2021 ......................................................... Apx. 63
DOH Extension Letter, dated April 5, 2021 ......................................................................... Apx. 64
DOH Extension Letter, dated June 8, 2021 .......................................................................... Apx. 65
DOH Extension Letter, dated August 11, 2021 .................................................................... Apx. 66
FOIL Letter (Submitted August 23, 2021) by Attorneys for Petitioners, to the DOH
Records Access Officer Rosemarie Hewig ............................................................... Apx. 67
DOH Response to Appeal, dated September 8, 2021 ........................................................... Apx. 69
DOH Response to FOIL Request # 21-03-235, dated September 8, 2021 ........................... Apx. 71
Heart to Heart Home Care Redacted Technical Offer Narrative .......................................... Apx. 73
DOH Notification Letter, dated May 3, 2021 to Home Choice LLC regarding FOIL
Request # 21-02-373 ............................................................................................... Apx. 133
FOIL Appeal Letter (Submitted October 22, 2021) by Attorneys for Petitioners, to the
DOH Records Access Appeals Officer David J. Spellman .................................... Apx. 135
DOH Response to Appeal, dated November 8, 2021 ......................................................... Apx. 138
DOH Response to FOIL Request # 21-03-235, dated November 8, 2021 ......................... Apx. 140
FOIL Appeal Letter (Submitted November 19, 2021) by Attorneys for Petitioners, to the
DOH Records Access Appeals Officer David J. Spellman .................................... Apx. 142
DOH Response to Appeal, dated November 30, 2021 ....................................................... Apx. 145
FOIL Appeal Letter (Submitted December 20, 2021) by Attorneys for Petitioners, to the
DOH Records Access Appeals Officer David J. Spellman .................................... Apx. 147
DOH Response to Appeal, dated January 3, 2022 .............................................................. Apx. 149
DOH Extension Letter, dated January 12, 2022 ................................................................. Apx. 150
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FOIL Letter (Submitted January 18, 2022) by Attorneys for Petitioners, to the DOH
Records Access Officer Rosemarie Hewig ............................................................. Apx. 151
DOH Response to FOIL Request # 21-03-235, dated January 19, 2022 ............................ Apx. 154
Redacted Technical Offer Evaluation Tools – Representative Examples .......................... Apx. 156
DOH Response to FOIL Request # 21-03-235, dated February 11, 2022 .......................... Apx. 186
FOIL Appeal Letter (Submitted February 25, 2022) by Attorneys for Petitioners, to the
DOH Records Access Appeals Officer David J. Spellman .................................... Apx. 188
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sTATEoF
oaTom
of Health
KATHY HOCHUL MARY T BASSETT. M.D M PR KRiST N M- PROUD
March 4. 2022
By email only: DAdarns@potornaclaw.com
Derek M. Adams, Esq.
Potomac Law Group
1300 Pennsylvania Avenue, N.W., Suite 700
Washington, D.C. 20004
Re: FOiL # 21-03-235
Dear Mr. Adams:
This letter regards your administrative appeal to the New York State Department of
Health ("DOH") related to your request for certain records pursuant to the Freedom of
Information Law ("FOll"), Public Officers Law ("POL") Article 6.
On or about March 5, 2021, DOH's Records Access Office ("RAO") received your FOlL
request for records related to RFO # 20039. You requested copies of all 395 responses to the
RFO, copies of the evaluation scores for each of the 395 bidders, copies of allevaluation
documents for each of the 395 bidders, copies of alltraining materials, copies of all
correspondence between DOH and any bidder requesting clarification or additional information,
and documents reflecting the identification and selection of evaluators. The RAO responded to
you by providing responsive records on September 8, 2021, November 8, 2021, January 19,
2022, and February 11, 2022. Your appeal was received on February 25, 2022.
The RAO explained that redactions were made on the February 11, 2022 release under
POL §§87(2)(a), (b), (d),(g) and (i). I have reviewed the redactions and they are allproper. The
redactions made under POL §87(2)(a) properly applied exemptions found inthe Tax Law of
New York [Tax Law §§211, 697, and 1146]. The redactions under POL §87(2)(b) were made
privacy"
properly because disclosure "would constitute an unwarranted invasion of personal and
included, among others, the redaction of Federal Employer Identification Numbers, names and
personal email addresses and telephone numbers, and the like. Likewise, some redactions
were properly made under POL §87(2)(d) as the responsive material constitutes "trade secrets
or [information] submitted to an agency by a commercial enterprise or derived from information
obtained from a commercial enterprise and which ifdisclosed would cause substantial injury to
enterprise."
the competitive position of the subject Some redactions were properly made under
assets."
POL§87(2)(i) to "guarantee the security of . .. information technology These were file
paths that might be of value to computer hackers but have no value to a lay person.
The RAO properly redacted records under POL §87(2)(g), which exempts from
disclosure records or portions thereof that are intra-agency and/or inter-agency materials
which are not:
i. statistical or factual tabulations or data;
Empire StatePiam Corning Towet Arcany,NY 12237 health.ny.gov
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ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits performed by the
comptroller ànd the federal government.
The purpose of this exemption is to "permit people within an agency to exchange
opinions, advice and criticism freely and frankly, without the chilling prospect of public
disclosure."
Matter of The New York Times Co. v City of New York Fire Dept., 4 NY3d
477, 488 (N.Y. 2005). In Matter of The New York Times Co., the Court recognized that
POL § 87(2)(g) permits an agency to withhold from disclosure more than "formal, lengthy
discussions."
or profound policy id. The exemption extends to all"opinions, ideas, or
advice exchanged as part of the consultative or deliberative process of government
making."
decision Matter of Gould v New York City Police Dept., 89 NY2d 267, 277 (N.Y.
1996). The inter-agency/intra-agency exemption includes entire records that are "not
nature."
factual in Matter of Tuck-lt-Away Assoc. v Empire State Dev. Corp., 54 AD3d
154, 166 (N.Y. App. Div. 2008); see also, Matter of Visiting Nurse Serv. of NY Home
are v New York State Dept. of Health, 2012 NY Slip Op 32975U (N.Y. Sup. Ct. Nov.
28, 2012).
Here, the records that were redacted under this provision contain opinions, ideas
and advice that were exchanged internally within DOH in internal documents; that is,
evaluators'
within comments. Therefore, they may be withheld under POL § 87(2)(g). I
have reviewed the intra-agency records that were redacted. They do not contain
statistical or factual tabulations or data, instructions to staffthat affect the public, final
agency policy or determinations, or external audits. Hence, the redactions were allmade
properly.
You note that there are inconsistent redactions in some portions of the responsive
secret"
material. The reason is that material was subject to the "trade process of POL §89(5).
That is,a significant portion of the 395 vendors submitted requests for redactions and not allthe
requests among the vendors were in concert. The RAO never redacted more than was
appropriate under FOIL but in many instances allowed material to be unredacted because the
vendor did not request itas shielded. Moreover, each of these determinations was between the
vendor and DOH and you would lack standing to challenge them.
DOH does not need to provide particularized, specific justifications for each redaction.
The RAO issued a written decision on February 11, 2022 which set forth the salient facts and
applied the statutory law. The specific governing statute for this issue is POL §89(3)(a) which
provides the sole obligation of an agency that denies a FOlL request is forthe agency to do so
writing."
"in While under the federal Freedom of Information Act there might be an obligation for
a federal agency to do as suggested (known as preparing a "Vaughn Index"), there has been no
"...decision involving the New York Freedom of Information Law that requires the preparation of
index."
a similar New York Committee on Open Government Advisory Opinion 16922.
Finally, you request that the RAO provide the records to you in a particular order. The
RAO provided four responses to you over several months. The RAO sent the records that it
had, when ithad them, and in the order in which itreceived them. The RAO properly fulfilled
your extensive FOlL request.
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For the reasons stated above, your appeal is denied in itsentirety. Judicial review of this
decision may be obtained pursuant to CPLR Article 78.
Sincerely,
SDavid jk Spehan
David J. Spellman
DOH Records Access Appeals Officer
cc: NYS Committee on Open Government
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Request for Offers (RFO)
RFO # 20039
New York State Fiscal Intermediaries for the
Consumer Directed Personal Assistance Program
Issued: DECEMBER 18, 2019
DESIGNATED CONTACT:
Pursuant to State Finance Law §§ 139-j and 139-k, the Department of Health identifies the following designated
contact to whom all communications attempting to influence the Department of Health’s conduct or decision
regarding this procurement must be made.
Elizabeth Wood
Bureau of Contracts
New York State Department of Health
Corning Tower, Room 2827
Albany, New York 12237
Telephone: 518-474-7896
Email Address: elizabeth.wood@health.ny.gov
PERMISSIBLE SUBJECT M ATTER CONTACT:
Pursuant to State Finance Law § 139-j(3)(a), the Department of Health identifies the following allowable contact for
communications related to the submission of written offers, written questions, pre-bid questions, and debriefings.
Michael Lewandowski
New York State Department of Health
Bureau of Programmatic Support
Division of Employee and Program Support
Office of Health Insurance Programs
One Commerce Plaza, Room 1450
Albany, NY 12237
Telephone: 518-473-4657
Email Address: OHIPContracts@health.ny.gov
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TABLE OF CONTENTS
(Hyperlinked; click to go directly to desired topic.)
1.0 CALENDAR OF EVENTS ........................................................................................................... 4
2.0 OVERVIEW AND IMPORTANT INFORMATION REGARDING REQUIREMENTS FOR SUBMITTING
OFFERS UNDER THIS RFO ................................................................................................................... 4
2.1 Background Information ........................................................................................................................5
2.2 Other Important NYS Contracting Information for Offerors ..................................................................5
2.3 Term of the Agreement and Termination Provisions ............................................................................6
3.0 OFFEROR QUALIFICATIONS ................................................................................................... 6
3.1 Eligible Offerors ....................................................................................................................................6
3.2 Collaborations .......................................................................................................................................6
4.0 FISCAL INTERMEDIARY SERVICES ........................................................................................ 7
4.1 Required Fiscal Intermediary Services .................................................................................................7
4.2 Best Practices .......................................................................................................................................8
4.3 Fiscal Intermediary Employment Related Responsibilities and Joint Employment Requirements ......8
4.4 Fiscal Intermediary Compliance Requirements ....................................................................................9
4.5 Fiscal Intermediary Organizational Requirements ............................................................................. 10
4.6 Fiscal Monitoring and Oversight Requirements ................................................................................. 10
4.7 Quality Monitoring and Reporting Requirements ............................................................................... 11
4.8 Information Technology Requirements .............................................................................................. 11
4.9 Privacy, Security and Confidentiality ................................................................................................. 12
4.10 Transition Requirements .................................................................................................................... 13
5.0 ADMINISTRATIVE INFORMATION ......................................................................................... 13
5.1 Restricted Period ............................................................................................................................... 13
5.2 Questions ........................................................................................................................................... 14
5.3 Right to Modify RFO .......................................................................................................................... 14
5.4 Payment ............................................................................................................................................. 14
5.5 Equal Employment Opportunity (EEO) Reporting ............................................................................. 15
5.6 Contract Insurance Requirements ..................................................................................................... 15
5.7 Subcontracting ................................................................................................................................... 15
5.8 DOH’s Reserved Rights ..................................................................................................................... 16
5.9 Freedom of Information Law (“FOIL”) ................................................................................................ 17
5.10 Lobbying............................................................................................................................................. 17
5.12 Debriefing ........................................................................................................................................... 18
5.13 Protest Procedures ............................................................................................................................ 18
5.14 Iran Divestment Act ............................................................................................................................ 18
5.15 Piggybacking ...................................................................................................................................... 19
5.16 Encouraging Use of New York Businesses in Contract Performance ............................................... 19
5.17 Participation Opportunities for NYS Certified Service-Disabled Veteran-Owned Businesses .......... 19
5.18 Intellectual Property ........................................................................................................................... 19
5.19 Vendor Assurance of No Conflict of Interest or Detrimental Effect.................................................... 19
5.20 Executive Order 177 Prohibiting Contracts with Entities that Support Discrimination ....................... 20
6.0 OFFER CONTENT ................................................................................................................... 20
6.1 Administrative Offer ........................................................................................................................... 20
6.2 Technical Offer................................................................................................................................... 21
7.0 OFFER SUBMISSION.................................................................................................................. 26
7.1 No Bid Form ....................................................................................................................................... 26
8.0 METHOD OF AWARD .............................................................................................................. 26
8.1 General Information ........................................................................................................................... 26
8.2 Submission Review ............................................................................................................................ 27
8.3 Technical Evaluation .......................................................................................................................... 27
8.4 Cost Evaluation .................................................................................................................................. 27
8.5 Award Recommendation.................................................................................................................... 27
ATTACHMENT A ............................................................................................................................................ 29
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ATTACHMENT B ............................................................................................................................................ 30
ATTACHMENT C ............................................................................................................................................ 32
ATTACHMENT D ............................................................................................................................................ 33
ATTACHMENT E ............................................................................................................................................ 35
ATTACHMENT F .......................................................................................................................................... 366
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1.0 CALENDAR OF EVENTS
NEW YORK STATE FISCAL INTERMEDIARY FOR CONSUMER DIRECTED PERSONAL ASSISTANCE
PROGRAM - RFO #20039
CALENDAR OF EVENTS
EVENT DATE
Issuance of Request for Offers December 18, 2019
Deadline for Submission of Written Questions January 3, 2020
Responses to Written Questions Posted by DOH on or January 17, 2020
about
Deadline for Submission of Offers by All Fis Operating February 18, 2020
on or before April 1, 2019
Anticipated Contract Start Date July 1, 2020
2.0 OVERVIEW AND IMPORTANT INFORMATION REGARDING REQUIREMENTS FOR
SUBMITTING OFFERS UNDER THIS RFO
Under the authority and provisions of section 365-f of the Social Services Law, see paragraphs (a) and (b) of
("DOH"
subdivision (4-a) in particular,the New York State Department of Health or "Department") isseeking
competitive responses to this Request for Offers ("RFO") from potentially qualified entities toenter into contract
with the Department to provide Fiscal Intermediary (FI) services under the Consumer Directed Personal
Assistance Program (CDPAP) for persons enrolled in fee for service Medicaid and the Medicaid managed care
program (collectively"NY Medicaid").
Entitieseligible to submit an offer under this RFO in accordance with SSL § 365-f include:
a) A service center for independent living (ILC) under Section 1121 of the New York State Education Law; OR
b) An entitythat has been established as a Fiscal Intermediary priorto January 1,2012 and has been
Law·
continuously providing services for CDPAP consumers under section 365-f of the Social Services OR
c) Entities capable of appropriately providing fiscalintermediary services, performing the responsibilities of a
fiscalintermediary and complying with SSL § 365-f
Per the provisions of section 365-f (4-a)(b)(iv) allentities providing FI services to NY Medicaid on or
before April 1, 2019, herein after referred to as "current FIs", must submit an offer to contract with the
Department to provide FI services by responding to this RFO within 60 days of its issuance and posting
to the Departmenes website.
Current Fis that respond to the RFO as a Lead FI or collaborating partner may continue to provide FI
services during the selection process and until further notice provided by the Department. Current FIs
that failto submit a response to this RFO within 60 days of itsposting or that are not selected under this
RFO to provide FI services will be required to cease operations in accordance with the Departmenes
transition policies and procedures to be released by the Department. Those transition procedures will
include requiring the Department to provide at least 45 calendar days written notice to the FI that itmust
cease operations and to the affected consumers; consumer representatives; personal assistants; local
departments of social services (LDSS); and managed care organizations (MCOs).
Following a transition period to be determined by the Department, only entitiesthat have successfully entered into
a contract with the Department under the terms ofthis RFO may continue to provide FI services either directlyor
through contract with a Medicaid managed care organization (MCO). The Department willmake available and
post to itswebsite a listof allapproved and contracted Fis.
Entitieschosen to contract with the Department for FI services under this RFO willagree to provide FI services to
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any CDPAP consumers enrolled in NY Medicaid in the FIs authorized service area. Entities chosen to contract
with the Department may also enter into administrative service agreements/contracts with MCOs to serve CDPAP
members enrolled in managed care plans. Entities under contract with the Department for FI services will not be
required to enter into additional contracts directly with LDSS to serve CDPAP fee-for-service members located in
counties in their authorized service area.
2.1 Background Information
The Consumer Directed Personal Assistance Program (“CDPAP”) is a Medicaid program that operates pursuant
to section 365-f of the New York State Social Services Law (“SSL”) and implementing regulations in section
505.28 of title 18 of the NY Codes Rules and Regulations (“NYCRR”). CDPAP is designed and intended to permit
eligible chronically ill and/or physically disabled individuals (referred to as consumers) that are eligible to receive
home care services greater flexibility and freedom of choice in obtaining those services by self-directing their
care. Under CDPAP, consumers may receive assistance with personal care services (authorized under SSL §
365-f), home health aide services, and skilled nursing tasks (authorized under Article 36 of the Public Health Law)
performed by a consumer directed personal assistant (“personal assistant” or “PA”) under the instruction,
supervision, and direction of the consumer or the consumer’s designated representative. The role of the Fiscal
Intermediary (“FI”), as set forth in SSL § 365-f, is to assist the consumer in carrying out his or her responsibilities
by performing administrative services required in statute and regulation (SSL § 365-f(4-a)(a)(ii) and 18 NYCRR §
505.28 (i), respectively) including wage and benefit processing, processing all income tax and other required
wage withholdings, and maintaining various types of records. Consumers have the sole right to select an FI.
The terms “offerors”, “bidders”, “vendors” and “proposers” are used interchangeably throughout this RFO. The
term “lead fiscal intermediary/lead FI” and “prime contractor” are also used interchangeably throughout this RFO.
For purposes of this RFO, the use of the terms “shall”, “must” and “will” are used interchangeably when describing
the Contractor’s/Offeror’s duties.
Under this RFO, organizations that contract with the Department will be prime contractors or Lead FIs (herein
after referred to as “Lead FI”). Lead FIs are responsible for the delivery of all services under this RFO.
2.2 Other Important NYS Contracting Information for Offerors
The Offeror is required to review, and is requested to have legal counsel review, RFO Attachment 8: DOH
Agreement, “Standard Clauses for New York State Contracts”. A successful Offeror that is selected for contract
award must be willing to enter into an Agreement substantially in accordance with the terms of Attachment 8.
Please note that this RFO and the awarded Offeror’s offer will become part of the contract as Appendix B and C,
respectively.
It should be noted that Appendix A of RFO Attachment 8: DOH Agreement, “Standard Clauses for New York
State Contracts”, contains important information related to the contract to be entered into as a result of this RFO
and will be incorporated, without change or amendment, into the contract entered into between the Department
and the successful Offeror. By submitting a response to the RFO, the Offeror agrees to comply with all the
provisions of Appendix A.
RFO Attachment 7: Bidder’s Certified Statements, must be submitted and includes a statement that the bidder
accepts, without any added conditions, qualifications or exceptions, the contract terms and conditions contained
in this RFO including any exhibits and attachments. It also includes a statement that the Offeror acknowledges
that, should any alternative offers or extraneous terms be submitted with the offer, such alternate offers or
extraneous terms will not be evaluated by the DOH.
Any qualifications or exceptions proposed by an Offeror to this RFO should be submitted in writing using the
process set forth in Section 5.2 (Questions) prior to the deadline for submission of written questions indicated in
RFO Section 1.0: (Calendar of Events). Any amendments DOH may make to the RFO as a result of questions
and answers will be publicized on the DOH web site.
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2.3 Term of the Agreement and Termination Provisions
This contract term is expected to be for a period of five (5) years, commencing on the date the contract is
approved by the NYS Office of the State Comptroller. The start date and contract term are subject to continued
statutory authority and federal financial participation, successful contractor performance, and required approvals
from the New York State Attorney General (AG) and the Office of the State Comptroller (OSC). The selected
Offerors must be able to provide these services throughout the five-year contract term.
In addition to the termination clauses found in Attachment 8, General Specifications, under the provisions of
section 365-f(4-b) of the Social Services Law, the Department may terminate an FI’s contract or suspend or limit
their rights and privileges under the contract upon 30 days written notice to the Contractor if the Department finds
that the FI has failed to comply with the provisions of law or regulations. The written notice shall include:
• A description of the conduct and the issues related that have been identified as failure of compliance, and
• The timeframe of the conduct that fails compliance.
Notwithstanding the provisions above, if the Department determines that the public health or safety would be
imminently endangered by the continued operation or actions of the FI, the Department may terminate the FI’s
contract or suspend or limit their rights and privileges under the contract immediately upon written notice.
3.0 OFFEROR QUALIFICATIONS
3.1 Eligible Offerors
Entities eligible to submit an offer under this RFO in accordance with SSL § 365-f include:
a) A service center for independent living (ILC) under Section 1121 of the New York State Education Law;
OR
b) An entity that has been established as a Fiscal Intermediary prior to January 1, 2012 and has been
continuously providing services for CDPAP individuals under section 366-f of the Social Services Law;
OR
c) Entities capable of appropriately providing fiscal intermediary services, performing the responsibilities of a
fiscal intermediary and complying with SSL § 365-f.
AND all Offerors must:
• Complete Attachment B and demonstrate how the Offeror meets the qualifications described above.
• Acknowledge their status as a joint employer for the consumer directed personal assistant by signing the
acknowledgement form in Attachment B.
Offerors that are not deemed eligible will be found non-responsive and eliminated from consideration.
3.2 Collaborations
The Department invites offers in which an eligible Offeror, acting as the Lead FI, partners with entities that meet the
qualifications described in section 3.1 to deliver FI services as defined in this RFO across an Offeror’s proposed
area of service. Such collaborations may be formed to best meet the needs of consumers, provide operational
efficiencies, provide geographic distribution that would ensure access in rural and underserved areas, and provide
cultural and language competencies specific to the consumers it will serve and those of the available workforce.
Each offer may only include one Lead FI which will be required to fulfill all program and contractual requirements.
Lead FIs may only submit one offer. Collaborating partners must meet the eligible offeror qualifications in Section
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3.1 but will be considered subcontractors for the purposes of that offer. Collaborating partners should complete
Attachment C. There is no limit to the number of offers that an eligible entity may join as a collaborating partner.
Current FIs that submit an offer as a Lead FI OR that are included as a subcontractor in at least one offer (within
60 days of the posting of this RFO) shall remain authorized to provide FI services pursuant to SSL § 365-f(4-
a)(b)(iv) until further notice from the Department.
Collaborating partners, as subcontractors, may not bill Medicaid, Managed Care Plans, Consumers, or PAs for
services provided in relation to an award under this RFO.
For