Motion-Secondary: 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 Motion-Secondary 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 08/31/2022 03:43 PM INDEX NO. 905064-22
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 08/31/2022

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.,

Petitioners,

-against-

NEW YORK STATE DEPARTMENT OF HEALTH, Index No. 905064-22
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”)

____________________________________

PETITIONERS’ REPLY MEMORANDUM OF LAW
IN FURTHER SUPPORT OF THEIR VERIFIED PETITION

ORAL ARGUMENT REQUESTED

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TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

LEGAL ARGUMENT .....................................................................................................................2

I. Respondents’ brief explanations of the extensive Technical Offer redactions are
wholly insufficient and inaccurate .......................................................................................3

II. Respondents obscure their prior characterizations of evaluator comments as
subject to FOIL ....................................................................................................................6

III. Section 7803 allows Petitioners to challenge Respondents’ failure to perform duty
under FOIL and erroneous application of exemptions ........................................................8

IV. Petitioners are entitled to a stay pursuant to CPLR § 7805 .................................................9

CONCLUSION ..............................................................................................................................23

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TABLE OF AUTHORITIES

CASES

Markowitz v. Serio, 11 N.Y.3d 43, 893 N.E.2d 110 (2008) ............................................................6

N.Y. 1 News v. Off. of President of Borough of Staten Island, 166 Misc. 2d 270, 631
N.Y.S.2d 479 (Sup. Ct. 1995) ..........................................................................................7, 8

Rodriguez v. Fischer, 36 Misc. 3d 1241(A), 960 N.Y.S.2d 52 (Sup. Ct. 2012) ..............................9

The N.Y. Times Co. v. City of N.Y. Fire Dep’t, 4 N.Y.3d 477, 488–89, 829 N.E.2d 266
(2005) ...................................................................................................................................7

Verizon N.Y. Inc. v. N.Y. State Pub. Serv. Comm’n, 46 Misc. 3d 858, 991 N.Y.S.2d 841
(Sup. Ct. 2014) .....................................................................................................................9

Verizon N.Y., Inc. v. Bradbury, 40 A.D.3d 1113, 837 N.Y.S.2d 291 (2007) ..................................2

Washington Post Co. v. NY State Ins. Dep’t, 61 N.Y.2d 557, 463 N.E.2d 604 (1984) ...................6

Yung Bros. Real Est. Co. v. Limandri, 26 Misc. 3d 1203(A), 906 N.Y.S.2d 784 (Sup. Ct.
2009) ....................................................................................................................................9

STATUTES AND RULES

New York Freedom of Information Law (“FOIL”) ............................................................... passim

§ 84.......................................................................................................................................7
§ 87...............................................................................................................................2, 3, 5
§ 89(5) ..................................................................................................................................3
§ 89(5)(f) ..............................................................................................................................5

State Finance Law (“SFL”)

SFL § 163 .............................................................................................................................8
SFL § 163(9)(c)(iv) ..............................................................................................................8
SSL § 365-f(4-a)(b)..............................................................................................................8
SSL § 365-f(4-a)(b)(v) .........................................................................................................8

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CPLR

§ 7803...................................................................................................................................8
§ 7803(1) ..............................................................................................................................9
§ 7803(3) ..............................................................................................................................9
§ 7805...................................................................................................................................9

iii

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INTRODUCTION

After a full year of delay, Respondent New York State Department of Health (“DOH”)

produced materials to Petitioners which are so heavily redacted as to render them useless. In

certain cases, hundreds of consecutive pages of offeror submissions are fully redacted by the

DOH. The redacted information is not the formula to Coca-Cola; rather, it is narrative

descriptions of the experience and ability of the offeror to meet the requirements of a fiscal

intermediary (“FI”) under the Consumer Directed Personal Assistance Program (“CDPAP”).

Such narratives describe general business practices and processes of the FIs, the disclosure of

which would not cause substantial injury to the competitive position of those offerors. Indeed,

when Petitioners were asked by DOH to propose redactions to their own submissions, they

sought minimal redactions for proprietary information such as negotiated rates with Managed

Long Term Care (“MLTC”) Plans or other sensitive information which would result in

substantial injury if possessed by a competitor. DOH, on the other hand, seeks to impose

wholesale redactions which are unsupported by law or reason, and further cloak Request for

Offer #20039 (the “RFO”) in a secrecy designed to render challenge futile.

Moreover, DOH seeks to impose across the board redactions to every description by its

evaluators of a strength or weakness of the offeror that purportedly supports that evaluator’s

score in each category of evaluation. These are not inter-agency deliberations, as claimed by

DOH, but rather reflect the agency’s rationale for its final score. In addition, DOH instructed its

reviewers prior to their evaluations—as well as informed the offerors during debriefings—that

these very comments would be disclosed publicly via the FOIL process. Thus, any argument

DOH had that these comments are subject to inter-agency deliberate process has been waived.

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Rather than acknowledge its clear shortcomings and agree to reproduce the requested

materials without inappropriate redactions, DOH has doubled down, arguing in its memorandum

of law that it “is in complete compliance with FOIL” (Dkt. 15 at 1) and seeking to shift the

burden on this Court to conduct an exhaustive in camera review to sort through the thousands of

pages inappropriately redacted by the DOH.

For the reasons discussed in Petitioners’ verified petition, memorandum of law, and

supporting documents, and in this reply memorandum of law, Respondents’ erroneous FOIL

determinations should be overturned and DOH should be required to reproduce with limited

redactions consistent with New York Public Officers Law § 87.

LEGAL ARGUMENT 1

“The disclosure provisions of FOIL are required to be given an expansive interpretation

and the statutory exemptions to disclosure are to be viewed narrowly.” Verizon N.Y., Inc. v.

Bradbury, 40 A.D.3d 1113, 1114, 837 N.Y.S.2d 291 (2007) (internal citations omitted). The

party seeking an exemption has the burden of proving that it applies. Id. Respondents have

failed to meet that burden, and their Response distorts both the reality of the “trade secret”

redaction process and the nature of the Technical Offer Evaluation Tool comments.

Accordingly, their FOIL determination should be overturned, and Petitioners should be permitted

access to the documents they seek.

1
Petitioners incorporate by reference the factual background section from their Memorandum of Law, Dkt. 5.

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I. Respondents’ brief explanations of the extensive Technical Offer redactions are
wholly insufficient and inaccurate.

Respondents’ memorandum of law attempts to provide some limited detail about the

claimed “trade secrets” exemption under FOIL Section 87(2)(d). 2 It states, briefly: “The

redacted material includes business names and contact information for subcontractors, the

number of employees and consumers served, pay rates, business plan summaries with detailed

descriptions of programs utilized for specific tasks required to ensure statutory compliance, and

excerpts of training materials, all of which could put bidders at a competitive disadvantage if

released to Petitioners who are competitors of the bidders.” (Dkt. 15 at 9.) However, these

general and sweeping justifications, and without any proof of substantial injury if disclosed, fall

far short of what FOIL requires. Nor do they capture the vast quantity and categories of redacted

information among the thousands of pages redacted by DOH.

Likewise, Respondents attempt to portray the extensive redactions as part of a reasonable,

standard FOIL “trade secret” process whereby offerors could identify portions of their

submissions “which if disclosed would cause substantial injury to the competitive position of the

subject enterprise.” FOIL § 89(5). This stands in stark contrast to what actually occurred, with

some entities redacting all or almost all of their Technical Offers, and without any explanation

for the substantial injury such disclosure would purportedly cause.

For example, the entire narrative portions of the Technical Offers submitted by successful

bidders Heart to Heart Home Care, Inc., 3 High Standard Home Care Inc., 4 and Link Homecare 5

2
It is not even clear whether Respondents claim that the redacted material constitutes “trade secrets” under §
87(2)(d), or whether they claim it is confidential information obtained from a commercial enterprise that would
cause substantial injury to the competitive position of that enterprise.
See Dkt. 15, at 9.
3
RAO Administrative Record (“RAO Admin”) 15695-15754.
4
RAO Admin 15979-15995.
5
RAO Admin 19064-19101

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are fully redacted—a total of more than 150 redacted pages. All but two sentences are redacted

from the Technical Offer narratives of awardee Horizon Home Care Services, Inc.; 6 only the

executive summary and list of policies in Apple Best Home Care Agency Inc.’s Technical Offer

are visible; 7 and Infiniti Home Care’s Technical Offer narrative, which exceeds 100 pages,

leaves only the three closing paragraphs unredacted. 8 Not surprisingly, Respondents offer no

explanation of how all or virtually all information about an FI’s operations is protected from

disclosure and would result in substantial injury to the offeror if disclosed—nor could they.

There are multiple other examples of entire pages and sections redacted.

Only limited materials in the Technical Offers can be justifiably described as so essential

that their disclosure would cause substantial competitive injury. However, redacted information

in some offers includes 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. Even information as basic and straightforward as experience

processing wages, benefits, and withholdings; record-keeping for personal assistants and

consumers; and maintaining a public-facing website was redacted from some Technical Offers.

See, e.g., Dkt. 4 at 73-84, 92. Likewise, some offerors redacted objective information such as

number of timely processed payroll cycles, number of accurate paychecks, and amount of time to

onboard a personal assistant. See, e.g., Dkt. 4 at 129-132. This far exceeds Respondents’ claim

that pay rates, business plans, and training materials were redacted to prevent competitive

disadvantage.

6
RAO Admin 16810-16904.
7
RAO Admin 06001-06036.
8
RAO Admin 17824-17936.

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The multiple wholesale redactions, as well as the inconsistencies in redactions across

various Technical Offers, demonstrate Respondents’ over-reliance on offerors’ self-interested

and overbroad assessments when determining whether FOIL Section 87(2)(d) exempts portions

of records from disclosure. The redactions to the Technical Offers were not rooted in consistent

logic or legal principles, and Respondents appear to have delegated their ultimate responsibility

to ensure that redactions were proper. See FOIL § 89(5)(f). Respondents’ allowance of these

extensive redactions run counter to Respondents’ own interpretation of FOIL and instructions to

offerors. Dkt. 4 at 20, 133 (noting that blanket assertions of exemptions would be unacceptable).

To illustrate the discrepancies, below are comparative examples of two offerors’ responses to an

RFO question concerning offerors’ websites, following the FOIL “trade secrets” process (the left

being a Petitioner in this action and the right a winning bidder):

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Compare RAO Admin 26204 with RAO Admin 15714.

Moreover, Respondents utterly fail to meet their burden of demonstrating that the records

are exempt from disclosure by “articulating a particularized and specific justification.”

Markowitz v. Serio, 11 N.Y.3d 43, 50–51, 893 N.E.2d 110 (2008) (internal citations omitted). A

generic overview in a single paragraph is not sufficient to justify in excess of one thousand

pages of redactions to multiple Technical Offers. Additionally, “[t]o meet its burden, the party

seeking exemption must present specific, persuasive evidence that disclosure will cause it to

suffer a competitive injury; it cannot merely rest on a speculative conclusion that disclosure

might potentially cause harm.” Id.; see also Washington Post Co. v. NY State Ins. Dep’t, 61

N.Y.2d 557, 566, 463 N.E.2d 604, 607 (1984). Here, Respondents have not articulated any

sound basis for any substantial injury that would result from disclosure of the requested

materials.

II. Respondents obscure their prior characterizations of evaluator comments as
subject to FOIL.

Evaluator comments in the Technical Offer Evaluation Tools—which represent the sole

explanations of the contract awards—are subject to FOIL disclosure, just as Respondents

previously admitted. Contrary to Respondents’ mischaracterization of their instructions to

evaluators, they did not merely “inform[] a party of its right to request documents pursuant to

FOIL” or notify employees that “documentation” would be subject to FOIL. (Dkt. 15 at 7, 11.)

Rather, Respondents specifically instructed evaluators that their comments—the exact

information Petitioners are seeking—would be disclosed. The “Technical Offer Instructions and

Evaluation Tool” that DOH provided to evaluators expressly indicated: “Comments made by

evaluators are subject to public disclosure under the Freedom of Information Act (FOIL). If

included, comments should only address the strengths and weaknesses of the section that is being

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scored.” Appendix at 42 (Dkt. 4). In addition, the instructions to evaluators also noted that

“Comments should be kept to strengths and weaknesses ONLY” and that “All review tools and

notes are subject to FOIL.” RAO Admin 32880.

Not only did Respondents understand that the evaluators’ comments would be disclosed,

but they also specifically instructed evaluators to keep comments to the strengths of weaknesses

of the section being scored, because of the anticipated disclosure that would occur via the FOIL

process. The intra-agency exception does not apply to communications that “the agency and the

employees understand and intend” will be made public. The N.Y. Times Co. v. City of N.Y. Fire

Dep’t, 4 N.Y.3d 477, 488–89, 829 N.E.2d 266 (2005).

Indeed, Respondents’ original characterization of the comments as subject to FOIL

disclosure makes sense when one considers the evaluators’ role in selecting the contract

recipients. Evaluators’ comments and scores were not merely “intended to aid the

decisionmakers in determining which offers to the RFO to accept or reject” (Dkt. 15 at 10). The

evaluators made the decisions, as their scores were numerically tallied to determine the winning

bidders. Put another way, the evaluator comments are not pre-decisional but are the only

rationale for the agency’s final decision. Cf. N.Y. 1 News v. Off. of President of Borough of

Staten Island, 166 Misc. 2d 270, 275, 631 N.Y.S.2d 479, 483 (Sup. Ct. 1995) (document that

explains rationale for agency’s decision is subject to FOIL disclosure).

Petitioners, and the public, cannot ensure the free and fair government process that FOIL

protects without access to the only materials explaining DOH’s selection of awardees. See FOIL

§ 84 (“The people’s right to know the process of governmental decision-making and to review

the documents … leading to determinations is basic to our society. Access to such information

should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.”).

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Moreover, DOH verbally summarized certain evaluator comments regarding some

individual Petitioners’ own offers during debriefing sessions and instructed Petitioners to utilize

FOIL to access the full Evaluation Tool comments. Assuming arguendo that the evaluators’

comments had been exempt intra-agency communications, partial disclosure by Respondents

during debriefings waived any such argument. See N.Y. 1 News, 631 N.Y.S.2d at 483.

Finally, there is no merit in Respondents’ argument that the Social Services Law exempts

them from the debriefing requirements in the State Finance Law. SSL § 365-f(4-a)(b) instructs

DOH to award contracts “[n]otwithstanding any inconsistent provision” of SFL § 163—but there

is no inconsistency between the statutes with respect to debriefings. Respondents must provide

Petitioners with the reasons the successful bidders were selected and Petitioners were not,

including the strengths and weaknesses and the application of other qualitative and quantitative

selection criteria to Petitioners’ offers. See SFL § 163(9)(c)(iv). Indeed, SSL § 365-f(4-a)(b)(v)

directs that “all decisions and approaches taken pursuant to this paragraph shall be documented

in a procurement record as defined in [SFL § 163].”

III. Section 7803 allows Petitioners to challenge Respondents’ failure to perform
duty under FOIL and erroneous application of exemptions.

Respondents claim that mandamus to compel is not an appropriate basis for requiring

them to produce the requested documents without the inappropriate redactions, and they argue

that Petitioners’ “cause of action for mandamus to compel should be dismissed.” (Dkt. 15 at 11-

12.) This argument is a red herring. Petitioners brought a cause of action for Wrongful Denial

of Access to Information and Judgment Pursuant to CPLR Section 7803. (Dkt. 1 at 17-18.)

Article 78, which replaced common law writs, permits petitioners to question, in relevant part,

“whether the body or officer failed to perform a duty enjoined upon it by law” (CPLR § 7803(1))

and “whether a determination was made in violation of lawful procedure, was affected by an

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error of law or was arbitrary and capricious or an abuse of discretion” (CPLR § 7803(3)).

Petitioners invoked both CPLR § 7803(1) and (3) in support of their argument that Respondents

failed to perform their obligations under FOIL and the SFL and made errors of law when

redacting documents that should have been disclosed. (Dkt. 5 at 13.) Analysis under either

subsection produces the same result. Cf. Rodriguez v. Fischer, 36 Misc. 3d 1241(A), 960

N.Y.S.2d 52 (Sup. Ct. 2012) (“Since the respondent failed to prove that a statutory exemption

applies to petitioner’s requests, FOIL compels disclosure, not concealment of the documents

requested”). Petitioners requested the Court to overturn Respondents’ determination denying

them access to records (Dkt. 1 ¶ 96; Dkt. 5 at 14); the natural consequence of that is compelling

Respondents to produce unredacted documents (Dkt. 1 ¶ 99, Prayer for Relief). See, e.g.,

Verizon N.Y. Inc. v. N.Y. State Pub. Serv. Comm’n, 46 Misc. 3d 858, 884, 991 N.Y.S.2d 841, 862

(Sup. Ct. 2014) (court ordered that documents that the court determined were not subject to

FOIL exemption shall be released).

IV. Petitioners are entitled to a stay pursuant to CPLR § 7805.

Petitioners have demonstrated that they meet the criteria for a stay of the final contract

awards pending the resolution of this proceeding. 9 (Dkt. 5 at 21-23.) Respondents’ suggestion

that Petitioners seek to stall implementation of the contract awards (Dkt. 15 at 1, 14) is

disingenuous in light of DOH’s long delays in fulfilling Petitioners’ FOIL requests and finalizing

awards under the RFO. Moreover, Petitioners have not launched a “collateral attack” on the

RFO process (Dkt. 15 at 14). The case that Respondents cite (id.), in which a petitioner filed an

Article 78 proceeding challenging the bid process while the same issue was still pending before

the OSC, is inapposite.

9
Petitioners properly sought a stay by order to show cause; a motion is not required. See Yung Bros. Real Est. Co.
v. Limandri, 26 Misc. 3d 1203(A), 906 N.Y.S.2d 784 (Sup. Ct. 2009).

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Here, Petitioners seek simply to pause the OSC’s determinations and final contract

awards until they obtain the documents that would allow them to meaningfully challenge the

awards. Respondents are denying Petitioners access to the only records—the offers submitted

and the reviewers’ comments evaluating those offers—that would explain DOH’s decision-

making under the RFO. Thus, there are two proceedings, closely related, and resolution of one

(the FOIL matter) is necessary to enable the other (the underlying bid protests) to move forward

fairly. Without a stay, OSC and DOH could finalize the contract awards, and Petitioners would

be forced to stop doing business as FIs without sufficient means to challenge the awards.

Moreover, granting a stay of the contract awards will promote judicial efficiency and

effective review by the OSC. The OSC needs complete information before ruling on bid protests

and contract awards that involve billions of dollars in Medicaid funds and affect critical care for

hundreds of thousands of Medicaid consumers. If the OSC rules against Petitioners’ bid protests

before the current FOIL issues are resolved, the Court would be faced with additional Article 78

proceedings challenging the OSC’s determinations. If the OSC’s determination is set aside due

to DOH’s failure to produce necessary materials, the OSC’s process would be forced to begin

anew. In the meantime, Petitioners and other FIs may be forced to close their doors, causing

substantial harm to their Medicaid consumers. The public interest supports a process for the

award of state contracts which is performed in a transparent and fulsome manner—that is all that

Petitioners request through this action.

CONCLUSION

In light of the foregoing, Petitioners respectfully request that the Court grant the relief

sought in the Verified Petition—namely, to overturn Respondents’ FOIL determinations; compel

Respondents to produce largely unredacted Technical Offers and wholly unredacted Technical

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Offer Evaluation Tools; conduct an in camera review, if necessary, for any remaining redactions

to the Technical Offers; award Petitioners their litigation costs and attorneys’ fees; stay the

underlying RFO proceedings; and issue other relief that the Court deems just and proper.

DATED: August 31, 2022

Respectfully submitted,

Potomac Law Group

_____________________________
Derek Adams

Attorney for Petitioners
1300 Pennsylvania Avenue, NW Suite 700
Washington, DC 20004

dadams@potomaclaw.com

To:
Letitia James
Attorney General of the State of New York
Stacey Hamilton
Assistant Attorney General, of Counsel
Attorney for Respondents Mary T. Bassett and
NYS Department of Health
The Capitol
Albany, New York 12224

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CERTIFICATION OF WORD COUNT

I hereby certify that the word count of this Memorandum of Law 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 2861 words.

DATED: August 31, 2022

Respectfully submitted,

_____________________________
Derek Adams

Attorney for Petitioners
1300 Pennsylvania Avenue, NW Suite 700
Washington, DC 20004

dadams@potomaclaw.com

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August 31, 2022

Case Filing Date

July 05, 2022

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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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Motion-Secondary: 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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