Preview
FILED: ALBANY COUNTY CLERK 07/05/2022 11:00 AM INDEX NO. 905064-22
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/05/2022
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., AFFIRMATION OF
DEREK ADAMS
Petitioners,
-against- Index No.
NEW YORK STATE DEPARTMENT OF HEALTH, RJI No.
and MARY T. BASSETT, MD, MPH, in her official
capacity as Commissioner of Health of the State of New
York,
Respondents,
For a Judgment Pursuant to Article 78 of the N.Y. Civil
Practice Law & Rules (“CPLR”)
____________________________________
Derek Adams, an attorney admitted to practice in the courts of New York, hereby
affirms, under penalty of perjury and pursuant to Section 2106 of the Civil Practice Law and
Rules (“CPLR”):
1. I am an attorney and a partner of the law firm Potomac Law Group, PLLC,
attorneys for Petitioners in this special proceeding filed pursuant to CPLR Article 78. I am
submitting this affirmation in support of Petitioners’ Verified Petition, which challenges the New
York State Department of Health’s (“DOH”) denial of Petitioners’ request under New York’s
Freedom of Information Law (“FOIL”) for records relating to the DOH’s Request for Offers
#20039 (the “RFO”), concerning New York State Fiscal Intermediaries for the Consumer
Directed Personal Assistance Program (“CDPAP”).
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2. The purpose of this affirmation is to summarize the history relating to Petitioners’
FOIL requests and authenticate documents that are relevant to the Court’s review of
Respondents’ final determination.
RFO #20039
3. 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.
4. In December 2019, the DOH issued the RFO (included at pages 4-39 of the
Appendix) for FI contracts.
5. In or about February and March 2020, Petitioners each submitted the required
Administrative and Technical Offers in response to the RFO.
6. Petitioners were not selected to receive awards, and only 68 of the 395 FIs that
submitted offers were selected.
7. 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.
8. Some Petitioners objected that the purported written debriefings were insufficient.
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9. In March and April 2021, the DOH held a series of oral debriefings with each
Petitioner.
10. I attended some of the debriefings, which were held via video conference. 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.
11. Petitioners timely challenged the DOH’s awards under the RFO and evaluation
process by filing bid protests with the Office of the State Comptroller (“OSC”) in or about March
and April 2021.
Petitioners’ FOIL Request and DOH’s Responses
12. In an effort to support Petitioners’ OSC protests and discern why Petitioners’
offers were not accepted and others were, on March 5, 2021, I filed a FOIL request (the “FOIL
Request”) on Petitioners’ behalf, seeking categories of documents relating to the RFO, including
the other offers submitted (the “Technical Offers”) and the DOH’s evaluation and scoring of all
offers (the “Technical Offer Evaluation Tools”). A true and correct copy of the FOIL Request is
included in the Appendix at 61-62.
13. The DOH acknowledged receipt of Petitioners’ FOIL Request on March 8, 2021.
A true and correct copy of that letter is included in the Appendix at 63.
14. 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.
True and correct copies of those letters are included in the Appendix at 64-66.
15. 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,
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Petitioners would consider their request constructively denied and would appeal accordingly. A
true and correct copy of that letter is included in the Appendix at 67-68.
16. In September 2021, the DOH agreed to begin producing materials. A true and
correct copy of the DOH’s cover letter is included in the Appendix at 71-72.
The Technical Offers
17. The first production, which my firm received on or about September 23, 2021,
included most of the Technical Offers, but the narratives in many were heavily or entirely
redacted. The DOH’s cover letter regarding the production contained no explanation of the
redactions.
18. 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.
19. 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. The redacted Technical Offer narrative of Heart to Heart Home Care, Inc. which
DOH produced to Petitioners is included in the Appendix at 73-132. Petitioners can provide
additional examples as needed.
20. All but two sentences are redacted from the Technical Offer narrative of awardee
Horizon Home Care Services, Inc.
21. Only the executive summary of Apple Best Home Care Agency Inc.’s Technical
Offer narrative is visible.
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22. Infiniti Home Care’s Technical Offer narrative, which exceeds 100 pages, has
only three closing paragraphs not redacted.
23. 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.
24. 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.
25. 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. For example, a true and correct copy of the letter that Petitioner
Home Choice LLC received relating to a separate FOIL request is included in the Appendix at
133-34.
26. The Petitioners that responded to such letters made redactions to their Technical
Offers that were limited to information such as MCO contracts and negotiated rates, contractor
business relationships, employee names and resumes, and certain sensitive financial information.
27. 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. A true and correct copy of the appeal letter is included in the Appendix at
135-37.
28. 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
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Access Office to provide the statutory basis for redactions. A true and correct copy of that letter
is included in the Appendix at 138-39.
29. 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. A true and correct
copy of the DOH’s production cover letter is included in the Appendix at 140-41.
30. 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. True and correct copies of that
correspondence are included in the Appendix at 142-49.
31. DOH sent another extension of time letter on or about January 12, 2022. A true
and correct copy of that letter is included in the Appendix at 150.
32. 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. A true and correct copy of that letter is included in the Appendix at 151-53.
The Technical Offer Evaluation Tools
33. On or about January 19, 2022, DOH informed Petitioners that DOH was sending
a third partial production. A true and correct copy of the DOH’s cover letter is included in the
Appendix at 154-55.
34. That production included some of the completed Technical Offer Evaluation
Tools.
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35. 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.
36. 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.
37. Representative examples of redacted strengths and weaknesses in Technical Offer
Evaluation Tools that DOH produced to Petitioners are included in the Appendix at 156-85.
Petitioners can provide additional examples as needed.
38. 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.
A true and correct copy of the DOH’s cover letter is included in the Appendix at 186-87.
Petitioners’ Administrative Appeal
39. On February 25, 2022, Petitioners filed an administrative appeal by letter to the
DOH Records Access Appeals Office. A true and correct copy of Petitioners’ administrative
appeal is included in the Appendix at 188-92.
40. 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. A true and correct copy of the DOH’s letter is included in the Appendix
at pages 1-3.
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NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/05/2022
DATED: July 5, 2022
Respectfully submitted,
_____________________________
Derek Adams
Attorney for Petitioners
1300 Pennsylvania Avenue, NW Suite 700
Washington, DC 20004
dadams@potomaclaw.com
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CERTIFICATION OF WORD COUNT
I hereby certify that the word count of this Affirmation complies with the word count
limits of 22 N.Y.C.R.R. § 202.8-b(a). According to the word-processing system used to prepare
this document, the total word count, exclusive of the material omitted under 22 N.Y.C.R.R. §
202.8-(b)(b) is 1,646 words.
DATED: July 5, 2022
Respectfully submitted,
_____________________________
Derek Adams
Attorney for Petitioners
1300 Pennsylvania Avenue, NW Suite 700
Washington, DC 20004
dadams@potomaclaw.com
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FILED: ALBANY COUNTY CLERK 07/05/2022 11:00 AM INDEX NO. 905064-22 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/05/2022 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., AFFIRMATION OF DEREK ADAMS Petitioners, -against- Index No. NEW YORK STATE DEPARTMENT OF HEALTH, RJI No. and MARY T. BASSETT, MD, MPH, in her official capacity as Commissioner of Health of the State of New York, Respondents, For a Judgment Pursuant to Article 78 of the N.Y. Civil Practice Law & Rules (“CPLR”) ____________________________________ Derek Adams, an attorney admitted to practice in the courts of New York, hereby affirms, under penalty of perjury and pursuant to Section 2106 of the Civil Practice Law and Rules (“CPLR”): 1. I am an attorney and a partner of the law firm Potomac Law Group, PLLC, attorneys for Petitioners in this special proceeding filed pursuant to CPLR Article 78. I am submitting this affirmation in support of Petitioners’ Verified Petition, which challenges the New York State Department of Health’s (“DOH”) denial of Petitioners’ request under New York’s Freedom of Information Law (“FOIL”) for records relating to the DOH’s Request for Offers #20039 (the “RFO”), concerning New York State Fiscal Intermediaries for the Consumer Directed Personal Assistance Program (“CDPAP”). 1 1 of 9 FILED: ALBANY COUNTY CLERK 07/05/2022 11:00 AM INDEX NO. 905064-22 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/05/2022 2. The purpose of this affirmation is to summarize the history relating to Petitioners’ FOIL requests and authenticate documents that are relevant to the Court’s review of Respondents’ final determination. RFO #20039 3. 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. 4. In December 2019, the DOH issued the RFO (included at pages 4-39 of the Appendix) for FI contracts. 5. In or about February and March 2020, Petitioners each submitted the required Administrative and Technical Offers in response to the RFO. 6. Petitioners were not selected to receive awards, and only 68 of the 395 FIs that submitted offers were selected. 7. 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. 8. Some Petitioners objected that the purported written debriefings were insufficient. 2 2 of 9 FILED: ALBANY COUNTY CLERK 07/05/2022 11:00 AM INDEX NO. 905064-22 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/05/2022 9. In March and April 2021, the DOH held a series of oral debriefings with each Petitioner. 10. I attended some of the debriefings, which were held via video conference. 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. 11. Petitioners timely challenged the DOH’s awards under the RFO and evaluation process by filing bid protests with the Office of the State Comptroller (“OSC”) in or about March and April 2021. Petitioners’ FOIL Request and DOH’s Responses 12. In an effort to support Petitioners’ OSC protests and discern why Petitioners’ offers were not accepted and others were, on March 5, 2021, I filed a FOIL request (the “FOIL Request”) on Petitioners’ behalf, seeking categories of documents relating to the RFO, including the other offers submitted (the “Technical Offers”) and the DOH’s evaluation and scoring of all offers (the “Technical Offer Evaluation Tools”). A true and correct copy of the FOIL Request is included in the Appendix at 61-62. 13. The DOH acknowledged receipt of Petitioners’ FOIL Request on March 8, 2021. A true and correct copy of that letter is included in the Appendix at 63. 14. 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. True and correct copies of those letters are included in the Appendix at 64-66. 15. 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, 3 3 of 9 FILED: ALBANY COUNTY CLERK 07/05/2022 11:00 AM INDEX NO. 905064-22 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/05/2022 Petitioners would consider their request constructively denied and would appeal accordingly. A true and correct copy of that letter is included in the Appendix at 67-68. 16. In September 2021, the DOH agreed to begin producing materials. A true and correct copy of the DOH’s cover letter is included in the Appendix at 71-72. The Technical Offers 17. The first production, which my firm received on or about September 23, 2021, included most of the Technical Offers, but the narratives in many were heavily or entirely redacted. The DOH’s cover letter regarding the production contained no explanation of the redactions. 18. 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. 19. 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. The redacted Technical Offer narrative of Heart to Heart Home Care, Inc. which DOH produced to Petitioners is included in the Appendix at 73-132. Petitioners can provide additional examples as needed. 20. All but two sentences are redacted from the Technical Offer narrative of awardee Horizon Home Care Services, Inc. 21. Only the executive summary of Apple Best Home Care Agency Inc.’s Technical Offer narrative is visible. 4 4 of 9 FILED: ALBANY COUNTY CLERK 07/05/2022 11:00 AM INDEX NO. 905064-22 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/05/2022 22. Infiniti Home Care’s Technical Offer narrative, which exceeds 100 pages, has only three closing paragraphs not redacted. 23. 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. 24. 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. 25. 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. For example, a true and correct copy of the letter that Petitioner Home Choice LLC received relating to a separate FOIL request is included in the Appendix at 133-34. 26. The Petitioners that responded to such letters made redactions to their Technical Offers that were limited to information such as MCO contracts and negotiated rates, contractor business relationships, employee names and resumes, and certain sensitive financial information. 27. 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. A true and correct copy of the appeal letter is included in the Appendix at 135-37. 28. 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 5 5 of 9 FILED: ALBANY COUNTY CLERK 07/05/2022 11:00 AM INDEX NO. 905064-22 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/05/2022 Access Office to provide the statutory basis for redactions. A true and correct copy of that letter is included in the Appendix at 138-39. 29. 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. A true and correct copy of the DOH’s production cover letter is included in the Appendix at 140-41. 30. 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. True and correct copies of that correspondence are included in the Appendix at 142-49. 31. DOH sent another extension of time letter on or about January 12, 2022. A true and correct copy of that letter is included in the Appendix at 150. 32. 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. A true and correct copy of that letter is included in the Appendix at 151-53. The Technical Offer Evaluation Tools 33. On or about January 19, 2022, DOH informed Petitioners that DOH was sending a third partial production. A true and correct copy of the DOH’s cover letter is included in the Appendix at 154-55. 34. That production included some of the completed Technical Offer Evaluation Tools. 6 6 of 9 FILED: ALBANY COUNTY CLERK 07/05/2022 11:00 AM INDEX NO. 905064-22 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/05/2022 35. 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. 36. 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. 37. Representative examples of redacted strengths and weaknesses in Technical Offer Evaluation Tools that DOH produced to Petitioners are included in the Appendix at 156-85. Petitioners can provide additional examples as needed. 38. 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. A true and correct copy of the DOH’s cover letter is included in the Appendix at 186-87. Petitioners’ Administrative Appeal 39. On February 25, 2022, Petitioners filed an administrative appeal by letter to the DOH Records Access Appeals Office. A true and correct copy of Petitioners’ administrative appeal is included in the Appendix at 188-92. 40. 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. A true and correct copy of the DOH’s letter is included in the Appendix at pages 1-3. 7 7 of 9 FILED: ALBANY COUNTY CLERK 07/05/2022 11:00 AM INDEX NO. 905064-22 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/05/2022 DATED: July 5, 2022 Respectfully submitted, _____________________________ Derek Adams Attorney for Petitioners 1300 Pennsylvania Avenue, NW Suite 700 Washington, DC 20004 dadams@potomaclaw.com 8 8 of 9 FILED: ALBANY COUNTY CLERK 07/05/2022 11:00 AM INDEX NO. 905064-22 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/05/2022 CERTIFICATION OF WORD COUNT I hereby certify that the word count of this Affirmation complies with the word count limits of 22 N.Y.C.R.R. § 202.8-b(a). According to the word-processing system used to prepare this document, the total word count, exclusive of the material omitted under 22 N.Y.C.R.R. § 202.8-(b)(b) is 1,646 words. DATED: July 5, 2022 Respectfully submitted, _____________________________ Derek Adams Attorney for Petitioners 1300 Pennsylvania Avenue, NW Suite 700 Washington, DC 20004 dadams@potomaclaw.com 9 9 of 9