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Potomac Law Group, PLLC
1300 Pennsylvania Avenue N.W., Suite 700 | Washington, D.C. 20004
T 202.743.1511 | F 202.318.7707 | www.potomaclaw.com
dadams@potomaclaw.com
November 21, 2022
VIA NYSCEF
The Honorable Margaret T. Walsh
Albany County Courthouse
I 6 Eagle Street
Albany, NY 12207
Re: Best Help Homecare, Inc., et al. v. N.Y. State Dep’t of Health, et al.,
Index No. 905064-22
Dear Judge Walsh:
We are writing to (1) notify the Court of a decision recently issued by a different
judge of the Albany County Supreme Court that addresses one of the two Freedom of
Information Law (“FOIL”) requests disputed in the above-captioned matter and (2) renew
Petitioners’ request for a stay in light of the recently-announced timeline for submitting the
protests in which Petitioners intend to use the information sought in this proceeding.
First, on October 20, Judge Gerald Connolly ruled on petitioners’ Article 78
proceeding in N.Y. Advocates for Home Care, et al. v. N.Y. State Dep’t of Health, et al.,
Index No. 910456-21. As discussed below in greater detail, that ruling does not consider or
affect the main argument of Petitioners in this action, and Petitioners believe that the ruling is
erroneous as it pertains to the FOIL request that both actions have in common.
Second, the Department of Health intends to announce additional contract awards in
the RFO process underlying this proceeding on or about January 15, 2023. 1 Petitioners are
not eligible for those awards and will have ten business days from the announcement to file a
protest with the Office of the State Comptroller. However, Petitioners’ receipt of the
information sought in this proceeding is essential to their upcoming protests.
1https://www.health.ny.gov/funding/rfo/20039/.
November 21, 2022
Page 2 of 4
I. NYAHC Decision
A. Background of NYAHC case
Like Petitioners in this case, the petitioners in the N.Y. Advocates for Home Care
(“NYAHC”) proceeding include fiscal intermediaries that were denied awards under RFO
#20039. The NYAHC petitioners submitted FOIL requests for information that would shed
light on DOH’s decision-making process in connection with the RFO, including scoring
documentation for certain offerors (the “Technical Offer Evaluation Tools”) and training
materials provided to evaluators. DOH denied some requests and improperly redacted the
records that it did produce, including all narrative descriptions of offerors’ strengths and
weaknesses from the Technical Offer Evaluation Tools. DOH claimed that these records
were subject to FOIL’s intra-agency exemption. Public Officers Law (“FOIL”) § 87(2)(g).
The NYAHC petitioners then filed an Article 78 proceeding challenging DOH’s
wrongful denial of access to information. They sought an order compelling DOH to produce
the unredacted Technical Offer Evaluation Tools and the training guidance provided to
evaluators. On October 20, Judge Connolly denied the petition. He ruled, inter alia, that the
descriptions of strengths and weaknesses in the Technical Offer Evaluation Tools were not
subject to disclosure under FOIL.
B. NYAHC ruling did not address Technical Offer argument at issue here
Importantly, the NYAHC petition did not challenge redactions to offerors’ Technical
Offers, and Judge Connolly’s order did not address the trade secret exemption in FOIL
section 87(2)(d). Accordingly, his ruling is not relevant to the main issue in the above-
captioned proceeding.
Petitioners’ main argument here involves the excessive and inconsistent redactions to
the Technical Offers submitted in response to the RFO. As set forth in detail in Petitioners’
briefing (see, e.g., Dkt. 5 at 15-18; Dkt. 24 at 3-6), Petitioners’ FOIL request sought copies of
the full Technical Offer that the DOH received from each bidder. Petitioners believed that
the Technical Offers either would shed light on why the successful bidders were selected or
would confirm that their selection was arbitrary, particularly when analyzed in conjunction
with the scoring documentation that Petitioners also requested.
Many of the Technical Offer narratives that DOH produced were heavily or entirely
redacted. Petitioners have challenged these redactions as beyond the scope of the FOIL
exemption for records that “are trade secrets or are submitted to an agency by a commercial
enterprise or derived from information obtained from a commercial enterprise and which if
disclosed would cause substantial injury to the competitive position of the subject
enterprise.” FOIL § 87(2)(d). The redactions were not supported by particularized
justifications or explanations of how disclosure would cause substantial competitive injury.
Additionally, the inconsistencies in redactions across the Technical Offers suggest that DOH
delegated to self-interested offerors its responsibility to ensure that redactions were proper.
2
November 21, 2022
Page 3 of 4
None of this was at issue in the NYAHC proceeding. The challenges there involved
only DOH’s interpretation of the FOIL exemption for intra-agency communications, based
on DOH’s redactions to the Technical Offer Evaluation Tools and withholding of internal
communications and draft documents. Thus, the NYAHC order is not instructive with respect
to the Technical Offers.
C. Ruling regarding Technical Offer Evaluation Tools is erroneous
Further, though both this and the NYAHC proceeding challenged DOH’s redactions to
the Technical Offer Evaluation Tools, the Court here should not follow the NYAHC ruling.
That order is not binding on this Court. Petitioners maintain that they should prevail on their
argument that DOH waived any ability to contend that the narrative comments within the
Technical Offer Evaluation Tools are exempt from FOIL disclosure. As Petitioners have
demonstrated, DOH’s instructions to both its evaluators and the Petitioners made clear that
comments on the Technical Offers were subject to public disclosure. See, e.g., Dkt. 5 at 18-
19; Dkt. 24 at 6-9. The NYAHC order’s determination on waiver is based on one
interpretation of DOH’s instructions to evaluators. Petitioners respectfully submit, however,
that this Court should take a different interpretation.
Moreover, the NYAHC order does not appear to have considered the additional
support for DOH’s waiver of the intra-agency exemption: that DOH verbally disclosed some
evaluator comments to Petitioners and instructed Petitioners to turn to FOIL for their
complete Technical Offer Evaluation Tools. These actions underscore DOH’s prior
acknowledgements that the evaluator comments are not intra-agency communications under
FOIL Section 87(2)(g). Even if they did constitute intra-agency communications, DOH
waived the relevant exemption.
II. A Stay is Warranted, and Time is of the Essence
In response to persistent criticism of the DOH’s initial RFO process, including
concerns regarding transparency, fairness, network adequacy, and arbitrariness, the New
York State Legislature twice amended the applicable law (Soc. Serv. § 365-f). The current
version of § 365-f provides for additional contract awards for qualified offerors that meet
certain legislatively prescribed size thresholds. 2 Namely, DOH shall award contracts to
offerors that attest that they provided FI services for at least 200 consumers in a city with a
population of more than one million, or at least 50 consumers in another area of the state,
during the first quarter of 2020.
DOH issued the attestation form on September 30, 2022, and submissions are due by
November 29, 2022. DOH anticipates that it will award contracts on or about January 15,
2023. Unfortunately, Petitioners do not meet the prescribed thresholds and cannot submit the
attestations. Accordingly, they will continue their protests before the Office of the State
2NY Soc. Serv. § 365-f(4-a)(b-1), (b-2), effective April 9, 2022.
3
November 21, 2022
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Comptroller (“OSC”). Following DOH’s announcement of the additional contract awards,
3
Petitioners will have 10 business days to submit a revised protest to the OSC.
As Petitioners have previously explained, the FOIL requests at issue in this
proceeding seek information that will be essential to formulating their OSC protests.
Without full and fair access to the narrative descriptions on the Technical Offers and the
evaluators’ assessments of offers’ strengths and weaknesses, Petitioners cannot fully
challenge the DOH’s initial RFO process and their non-awards. Petitioners therefore
respectfully renew their request for a stay of the DOH and OSC’s contracting process.
Petitioners should not be required to submit protests until the Court rules on their Article 78
proceeding involving their FOIL requests. They also respectfully request a ruling on the stay
prior to the expected January 15, 2023 contract announcement.
III. Conclusion
In sum, the NYAHC order is not relevant to Petitioners’ argument regarding the
redacted Technical Offers, and it is not binding on this Court’s consideration of Petitioners’
argument regarding the Technical Offer Evaluation Tools. The Court should overturn
Respondents’ FOIL determinations and compel them to produce appropriately, minimally,
and consistently redacted Technical Offers and unredacted Technical Offer Evaluation Tools.
In addition, the Court should stay the underlying contract award and certification process by
DOH and OSC until the proceedings here are resolved, enabling Petitioners to submit a
meaningful protest to OSC supported by the documents sought under FOIL.
Respectfully submitted,
Derek M. Adams, Partner
Potomac Law Group, PLLC
Cc (via e-mail and NYSCEF):
Stacey Hamilton
Assistant Attorney General, of Counsel
Attorney for Respondents Mary T. Bassett and
NYS Department of Health
The Capitol
Albany, New York 12224
3
Petitioners Carefirst CDPAP Corp. and Home Choice LLC have already submitted their protests, pursuant to
an October 25, 2022 letter from the OSC requiring bidders that were disqualified from the initial RFO to submit
their protests within 10 business days of the letter.
As explained in Petitioners’ previous filings, Carefirst and
Home Choice’s offers were disqualified for ministerial errors: omitting attachments to the offer and missing a
single page that failed to scan, respectively.
DOH contacted other offerors regarding missing pages and
information and allowed them to correct their errors, but it did not reach out to Carefirst or Home Choice.
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Potomac Law Group, PLLC 1300 Pennsylvania Avenue N.W., Suite 700 | Washington, D.C. 20004 T 202.743.1511 | F 202.318.7707 | www.potomaclaw.com dadams@potomaclaw.com November 21, 2022 VIA NYSCEF The Honorable Margaret T. Walsh Albany County Courthouse I 6 Eagle Street Albany, NY 12207 Re: Best Help Homecare, Inc., et al. v. N.Y. State Dep’t of Health, et al., Index No. 905064-22 Dear Judge Walsh: We are writing to (1) notify the Court of a decision recently issued by a different judge of the Albany County Supreme Court that addresses one of the two Freedom of Information Law (“FOIL”) requests disputed in the above-captioned matter and (2) renew Petitioners’ request for a stay in light of the recently-announced timeline for submitting the protests in which Petitioners intend to use the information sought in this proceeding. First, on October 20, Judge Gerald Connolly ruled on petitioners’ Article 78 proceeding in N.Y. Advocates for Home Care, et al. v. N.Y. State Dep’t of Health, et al., Index No. 910456-21. As discussed below in greater detail, that ruling does not consider or affect the main argument of Petitioners in this action, and Petitioners believe that the ruling is erroneous as it pertains to the FOIL request that both actions have in common. Second, the Department of Health intends to announce additional contract awards in the RFO process underlying this proceeding on or about January 15, 2023. 1 Petitioners are not eligible for those awards and will have ten business days from the announcement to file a protest with the Office of the State Comptroller. However, Petitioners’ receipt of the information sought in this proceeding is essential to their upcoming protests. 1https://www.health.ny.gov/funding/rfo/20039/. November 21, 2022 Page 2 of 4 I. NYAHC Decision A. Background of NYAHC case Like Petitioners in this case, the petitioners in the N.Y. Advocates for Home Care (“NYAHC”) proceeding include fiscal intermediaries that were denied awards under RFO #20039. The NYAHC petitioners submitted FOIL requests for information that would shed light on DOH’s decision-making process in connection with the RFO, including scoring documentation for certain offerors (the “Technical Offer Evaluation Tools”) and training materials provided to evaluators. DOH denied some requests and improperly redacted the records that it did produce, including all narrative descriptions of offerors’ strengths and weaknesses from the Technical Offer Evaluation Tools. DOH claimed that these records were subject to FOIL’s intra-agency exemption. Public Officers Law (“FOIL”) § 87(2)(g). The NYAHC petitioners then filed an Article 78 proceeding challenging DOH’s wrongful denial of access to information. They sought an order compelling DOH to produce the unredacted Technical Offer Evaluation Tools and the training guidance provided to evaluators. On October 20, Judge Connolly denied the petition. He ruled, inter alia, that the descriptions of strengths and weaknesses in the Technical Offer Evaluation Tools were not subject to disclosure under FOIL. B. NYAHC ruling did not address Technical Offer argument at issue here Importantly, the NYAHC petition did not challenge redactions to offerors’ Technical Offers, and Judge Connolly’s order did not address the trade secret exemption in FOIL section 87(2)(d). Accordingly, his ruling is not relevant to the main issue in the above- captioned proceeding. Petitioners’ main argument here involves the excessive and inconsistent redactions to the Technical Offers submitted in response to the RFO. As set forth in detail in Petitioners’ briefing (see, e.g., Dkt. 5 at 15-18; Dkt. 24 at 3-6), Petitioners’ FOIL request sought copies of the full Technical Offer that the DOH received from each bidder. Petitioners believed that the Technical Offers either would shed light on why the successful bidders were selected or would confirm that their selection was arbitrary, particularly when analyzed in conjunction with the scoring documentation that Petitioners also requested. Many of the Technical Offer narratives that DOH produced were heavily or entirely redacted. Petitioners have challenged these redactions as beyond the scope of the FOIL exemption for records that “are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise.” FOIL § 87(2)(d). The redactions were not supported by particularized justifications or explanations of how disclosure would cause substantial competitive injury. Additionally, the inconsistencies in redactions across the Technical Offers suggest that DOH delegated to self-interested offerors its responsibility to ensure that redactions were proper. 2 November 21, 2022 Page 3 of 4 None of this was at issue in the NYAHC proceeding. The challenges there involved only DOH’s interpretation of the FOIL exemption for intra-agency communications, based on DOH’s redactions to the Technical Offer Evaluation Tools and withholding of internal communications and draft documents. Thus, the NYAHC order is not instructive with respect to the Technical Offers. C. Ruling regarding Technical Offer Evaluation Tools is erroneous Further, though both this and the NYAHC proceeding challenged DOH’s redactions to the Technical Offer Evaluation Tools, the Court here should not follow the NYAHC ruling. That order is not binding on this Court. Petitioners maintain that they should prevail on their argument that DOH waived any ability to contend that the narrative comments within the Technical Offer Evaluation Tools are exempt from FOIL disclosure. As Petitioners have demonstrated, DOH’s instructions to both its evaluators and the Petitioners made clear that comments on the Technical Offers were subject to public disclosure. See, e.g., Dkt. 5 at 18- 19; Dkt. 24 at 6-9. The NYAHC order’s determination on waiver is based on one interpretation of DOH’s instructions to evaluators. Petitioners respectfully submit, however, that this Court should take a different interpretation. Moreover, the NYAHC order does not appear to have considered the additional support for DOH’s waiver of the intra-agency exemption: that DOH verbally disclosed some evaluator comments to Petitioners and instructed Petitioners to turn to FOIL for their complete Technical Offer Evaluation Tools. These actions underscore DOH’s prior acknowledgements that the evaluator comments are not intra-agency communications under FOIL Section 87(2)(g). Even if they did constitute intra-agency communications, DOH waived the relevant exemption. II. A Stay is Warranted, and Time is of the Essence In response to persistent criticism of the DOH’s initial RFO process, including concerns regarding transparency, fairness, network adequacy, and arbitrariness, the New York State Legislature twice amended the applicable law (Soc. Serv. § 365-f). The current version of § 365-f provides for additional contract awards for qualified offerors that meet certain legislatively prescribed size thresholds. 2 Namely, DOH shall award contracts to offerors that attest that they provided FI services for at least 200 consumers in a city with a population of more than one million, or at least 50 consumers in another area of the state, during the first quarter of 2020. DOH issued the attestation form on September 30, 2022, and submissions are due by November 29, 2022. DOH anticipates that it will award contracts on or about January 15, 2023. Unfortunately, Petitioners do not meet the prescribed thresholds and cannot submit the attestations. Accordingly, they will continue their protests before the Office of the State 2NY Soc. Serv. § 365-f(4-a)(b-1), (b-2), effective April 9, 2022. 3 November 21, 2022 Page 4 of 4 Comptroller (“OSC”). Following DOH’s announcement of the additional contract awards, 3 Petitioners will have 10 business days to submit a revised protest to the OSC. As Petitioners have previously explained, the FOIL requests at issue in this proceeding seek information that will be essential to formulating their OSC protests. Without full and fair access to the narrative descriptions on the Technical Offers and the evaluators’ assessments of offers’ strengths and weaknesses, Petitioners cannot fully challenge the DOH’s initial RFO process and their non-awards. Petitioners therefore respectfully renew their request for a stay of the DOH and OSC’s contracting process. Petitioners should not be required to submit protests until the Court rules on their Article 78 proceeding involving their FOIL requests. They also respectfully request a ruling on the stay prior to the expected January 15, 2023 contract announcement. III. Conclusion In sum, the NYAHC order is not relevant to Petitioners’ argument regarding the redacted Technical Offers, and it is not binding on this Court’s consideration of Petitioners’ argument regarding the Technical Offer Evaluation Tools. The Court should overturn Respondents’ FOIL determinations and compel them to produce appropriately, minimally, and consistently redacted Technical Offers and unredacted Technical Offer Evaluation Tools. In addition, the Court should stay the underlying contract award and certification process by DOH and OSC until the proceedings here are resolved, enabling Petitioners to submit a meaningful protest to OSC supported by the documents sought under FOIL. Respectfully submitted, Derek M. Adams, Partner Potomac Law Group, PLLC Cc (via e-mail and NYSCEF): Stacey Hamilton Assistant Attorney General, of Counsel Attorney for Respondents Mary T. Bassett and NYS Department of Health The Capitol Albany, New York 12224 3 Petitioners Carefirst CDPAP Corp. and Home Choice LLC have already submitted their protests, pursuant to an October 25, 2022 letter from the OSC requiring bidders that were disqualified from the initial RFO to submit their protests within 10 business days of the letter. As explained in Petitioners’ previous filings, Carefirst and Home Choice’s offers were disqualified for ministerial errors: omitting attachments to the offer and missing a single page that failed to scan, respectively. DOH contacted other offerors regarding missing pages and information and allowed them to correct their errors, but it did not reach out to Carefirst or Home Choice. 4