Motion for Child Support in 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| Trellis.Law

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.

Preview
FILED: ALBANY COUNTY CLERK 12/28/2022 06:46 PM INDEX NO. 905064-22
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/28/2022

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’ MOTION FOR TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION

ORAL ARGUMENT REQUESTED

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PLEASE TAKE NOTICE that, upon the accompanying memorandum of law, affidavits

of Rouandy Pascal and Yvonne Ward, and Petitioners’ previously filed verified petition,

supporting memorandum of law and reply brief, Petitioners, through counsel, at a return date to

be scheduled as soon as possible, will move this Court for a preliminary injunction preventing

Respondents from announcing additional contract awards and non-awards under RFO #20039

until this proceeding is resolved and Respondents have provided Petitioners with the documents

to which they are entitled under FOIL.

In the event that the Court cannot schedule a preliminary injunction hearing and rule on

Petitioners’ Motion prior to January 15, 2023, then Petitioners will move this Court for a

temporary restraining order on January 13, 2023 at 9:30 a.m., or as soon thereafter as counsel can

be heard. Pursuant to NY CPLR § 2214(b), Petitioners request that Respondents file their

response by January 6, 2023. Petitioners intend to file a reply by January 12, 2023.

DATED: December 28, 2022

Respectfully submitted,

Potomac Law Group

_____________________________
Derek Adams

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

dadams@potomaclaw.com

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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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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”)

____________________________________

MEMORANDUM OF LAW IN SUPPORT OF PETITIONERS’ MOTION FOR
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

ORAL ARGUMENT REQUESTED

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TABLE OF CONTENTS

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

FACTUAL BACKGROUND ..........................................................................................................2

1. The CDPAP and the Role of FIs ..............................................................................2

2. The RFO...................................................................................................................3

3. Petitioners’ FOIL requests .......................................................................................6

4. Upcoming announcement of additional awards .....................................................10

LEGAL STANDARD ....................................................................................................................11

LEGAL ARGUMENT ...................................................................................................................12

1. Petitioners are likely to succeed on the merits of their claims ...............................13

2. Petitioners will be irreparably harmed if they are unable to access the FOIL
documents before they must submit their bid protests to OSC..............................19

3. The balance of the equities favors Petitioners .......................................................22

CONCLUSION ..............................................................................................................................24

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TABLE OF AUTHORITIES

CASES

AEP Res. Serv. Co. v. Long Island Power Auth., 179 Misc. 2d 639, 686 N.Y.S.2d 664
(Sup. Ct. 1999) ...................................................................................................................24

B. Milligan Contracting, Inc. v. State, 251 A.D.2d 1084, 674 N.Y.S.2d 204 (1998)....................20

Encore Coll. Bookstores, Inc. v. Auxiliary Serv. Corp. of State Univ. of New York at
Farmingdale, 87 N.Y.2d 410, 663 N.E.2d 302 (1995) ......................................................14

Encore Coll. Bookstores, Inc., 87 N.Y.2d at 420...........................................................................16

Glens Falls Newspapers, Inc. v. Ctys. of Warren & Washington Dev. Agency, 257 A.D.2d
948, 684 N.Y.S.2d 321 (1999) ...........................................................................................15

Lee v. NYC Dep’t of Hous. Pres. & Dev., 162 Misc. 2d 901, 614 N.Y.S.2d 694 (Sup. Ct.
1994) ............................................................................................................................13, 23

Loc. 3471 v. City of Geneva, 75 Misc. 3d 677, 168 N.Y.S.3d 250 (Sup. Ct. 2022) ......................12

Madera v. Elmont Pub. Libr., 101 A.D.3d 726, 957 N.Y.S.2d 129 (2012) ...................................18

Markowitz v. Serio, 11 N.Y.3d 43, 893 N.E.2d 110 (2008) ..........................................................14

Melvin v. Union Coll., 195 A.D.2d 447, 600 N.Y.S.2d 141 (1993) ........................................11, 23

Moody’s Corp. v. N.Y. State Dep’t of Tax’n & Fin., 141 A.D.3d 997, 35 N.Y.S.3d 785
(2016) .................................................................................................................................14

Mr. Natural, Inc. v. Unadulterated Food Prod., Inc., 152 A.D.2d 729, 544 N.Y.S.2d 182
(1989) .................................................................................................................................21

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) ......................................................................................18, 19

N.Y. Advocates for Home Care, et al. v. N.Y. State Dep’t of Health, et al., Index No.
910456-21 (Oct. 20, 2021) .................................................................................................18

N.Y. State Law Enforcement Officers Union, Council 82, AFSCME, AFL-CIO ...........................12

NY Legal Assistance Grp. v. Bd. of Immigr. Appeals, 987 F.3d 207 (2d Cir. 2021) .....................21

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New England Sec. Corp. v. Stone, 33 Misc. 3d 1237(A), 941 N.Y.S.2d 539 (Sup. Ct.
2011) ..................................................................................................................................20

Prop. Valuation Analysts, Inc. v. Williams, 164 A.D.2d 131, 563 N.Y.S.2d 545 (1990) ..............22

R.W. Granger & Sons, Inc. v. State of N.Y. Facilities Dev. Corp., 207 A.D.2d 596, 615
N.Y.S.2d 509 (1994) ..........................................................................................................20

Rose v. Albany Cty. Dist. Attorney’s Off., 111 A.D.3d 1123, 975 N.Y.S.2d 258 (2013) ..............14

Steele v. NY State Dep’t of Health, 119 Misc. 2d 963, 464 N.Y.S.2d 925 (Sup. Ct. 1983)...........14

The N.Y. Times Co. v. City of N.Y. Fire Dep’t, 4 N.Y.3d 477, 829 N.E.2d 266 (2005) ................19

Title Guarantee Co. v. N.L.R.B., No. 75 CIV. 3828, 1975 WL 11990, at *3 (S.D.N.Y.
Nov. 28, 1975) ...................................................................................................................21

Verizon N.Y., Inc. v. Bradbury, 40 A.D.3d 1113, 837 N.Y.S.2d 291 (2007) ..........................13, 15

Washington Post Co. v. NY State Ins. Dep’t, 61 N.Y.2d 557, 463 N.E.2d 604 (1984) .................14

Yung Bros. Real Est. Co. v. Limandri, 26 Misc. 3d 1203(A), 906 N.Y.S.2d 784 (Sup. Ct.
2009) ......................................................................................................................11, 12, 21

STATUTES AND RULES

New York Public Officers Law
§ 87.......................................................................................................................................2
§ 87(2)(d) .................................................................................................................8, 14, 15
§ 87(2)(g) ...........................................................................................................................10

New York Social Services Law
§ 365-f ......................................................................................................................4, 10, 11
§ 365-f(1) .............................................................................................................................3
§ 365-f(3) .............................................................................................................................3
§ 365-f(4-a)(b-1), (b-2) ......................................................................................................11
§ 365-f(4-a)(e) ......................................................................................................................3

State Finance Law (“SFL”)
SFL § 163(2)(b) .................................................................................................................23
SFL § 163(9) ......................................................................................................................20
SFL § 163(9)(c) ..................................................................................................................17
SFL § 163(9)(c)(iv) ........................................................................................................5, 18

New York Freedom of Information Law (“FOIL”) ............................................................... passim
§ 78...............................................................................................................................22, 23
§ 84.....................................................................................................................................19

iii

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§ 84.....................................................................................................................................23
§ 87(2)(d) ...........................................................................................................................17
§ 87(2)(g) ...........................................................................................................................18
§ 89(4)(b) ...........................................................................................................................17
§ 89(5) ................................................................................................................................15
§ 89(5)(f) ............................................................................................................................17

NY CPLR
§ 6301.................................................................................................................................12
§ 6311.................................................................................................................................12
§ 6312.................................................................................................................................12
§ 6312(a) ............................................................................................................................20
§ 6313(a) ............................................................................................................................12
§ 7803(1) ............................................................................................................................13
§ 7803(3) ............................................................................................................................13
§ 7805.................................................................................................................................12

N.Y.C.C.R.R. § 202.8-d .................................................................................................................12

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INTRODUCTION

After nearly two years of controversy and criticism surrounding RFO #20039,

Respondent New York State Department of Health (“DOH”) intends to announce additional

contract awards under the RFO on or about January 15, 2023. 1 Petitioners are fiscal

intermediaries (“FIs”) providing services through the Consumer Directed Personal Assistance

Program (“CDPAP”) that submitted offers in response to the RFO. They are generally smaller

businesses that did not receive contract awards in the initial flawed evaluation process and that

are not eligible for the latest size-based round of awards. Petitioners will have ten business days

from their receipt of non-award letters—concurrent with the DOH’s announcement of the new

awards—to file renewed protests with the Office of the State Comptroller (“OSC”). 2

The information sought in this proceeding, pursuant to New York’s Freedom of

Information Law (“FOIL”), is essential to Petitioners’ upcoming OSC protests. That is precisely

why Petitioners began seeking it in March 2021—twenty two months ago—to support their

belief that the DOH’s evaluation process was arbitrary and unfair, and to enable Petitioners to

meaningfully challenge DOH’s awards and save their businesses. Since that time, DOH

extensively delayed providing responsive documents and ultimately produced many documents

that this action challenges as improperly and overly redacted, so as to render them effectively

useless. As the time approaches for DOH to announce additional contract awards and for

Petitioners to protest their impending non-awards to OSC, it becomes increasingly likely that the

relief Petitioners seek here will be ineffectual. That is, if Petitioners must submit protests

without the benefit of reviewing the documents to which they are entitled under FOIL, they will

be unable to challenge fully the DOH’s actions that threaten their businesses, and the OSC will

1
https://www.health.ny.gov/funding/rfo/20039/.
2
See Affidavit of Rouandy Pascal (hereinafter, “Pascal Aff.”), at ¶ 32, Ex. 1, OSC letter.

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not have an accurate and fulsome picture of the DOH’s evaluation process when it determines

whether to approve the DOH’s proposed contract awards.

Accordingly, Petitioners hereby move the Court to enter a preliminary injunction,

preventing DOH from announcing contract awards and sending non-award letters until this

proceeding is resolved and the Court’s decision in this litigation is effectuated. Petitioners also

move for a temporary restraining order if the Court is unable to hold a hearing prior to January

15, 2023. Injunctive relief will prevent irreparable harm to Petitioners, will cause no hardship to

Respondents, nor to the other FIs seeking awards, and could obviate the need for additional

proceedings challenging adverse determinations by the OSC.

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

law and reply brief, Respondents’ erroneous FOIL determinations should be overturned and

DOH should be required to reproduce documents with limited redactions consistent with New

York Public Officers Law § 87—and for the reasons discussed in this motion and memorandum,

until DOH does so it should be restrained from announcing new contract awards.

FACTUAL BACKGROUND

Petitioners incorporate by reference the facts as set forth in their Verified Petition and

accompanying Memorandum of Law (Dkt. 1 and 5) but also repeat many of them here and add

new factual developments.

1. The CDPAP and the Role of FIs

The CDPAP is a New York State Medicaid program designed to permit chronically ill

and/or physically disabled individuals (referred to as “consumers”) receiving personal care

services at home (e.g., assistance with toileting and bathing, washing and dressing, preparing

meals, providing transportation to medical appointments, assisting with medications,

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housekeeping tasks) greater flexibility and freedom of choice in obtaining such services. N.Y.

Soc. Serv. § 365-f(1). Medicaid beneficiaries receiving personal care services through the

CDPAP may select their caregivers, which can include certain family members or friends of the

beneficiary. Id. at § 365-f(3). The beneficiary (a.k.a., consumer) serves as a co-employer of the

personal assistant and must be “under the eligible individual’s [or his or her personal

representative’s] instruction, supervision and direction.” Id. However, the FI as the

“participating provider” also serves as co-employer of the personal assistant and exercises

oversight and care responsibilities for the consumer and the personal assistant. Id.; 4-a(a).

2. The RFO

FIs in New York currently contract with Medicaid Managed Care Organizations

(“MCOs”) under Managed Long-Term Care (“MLTC”) Plans, and county social services

departments to provide CDPAP services. In the 2017-2018 New York State Budget, the

legislature created a new requirement in which FIs would need to apply for an authorization from

the DOH to continue serving as an FI. The authorization would be a five-year period if the DOH

was satisfied with the FI’s “character, competence and standing in the community” and its ability

to provide FI services. 3 In 2017, the DOH began a process to implement the new authorization

requirement. 4 Applications for authorization were thereafter submitted. For example, Petitioner

Safe Haven Home Care, Inc. submitted its application, consisting of 176 pages, on December 13,

2017, and received confirmation by DOH on January 2, 2019 that it had met all requirements and

was approved for a five-year authorization. Pascal Aff. at ¶¶ 13-14.

3
N.Y. Soc. Serv. § 365-f(4-a)(e), effective January 1, 2018 to April 11, 2018.
4
https://www.health.ny.gov/health_care/medicaid/program/update/2017/2017-10.htm#consumer.

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DOH did not, however, conclude its review of all submissions for authorization prior to

the legislature once again amending the N.Y. Soc. Serv. Law (“SSL”) § 365-f, effective April 1,

2019. This time, the authorization process was removed and replaced by a new procurement

process in which FIs would enter into contracts with the DOH. The SSL amendments instructed

the DOH to enter into contracts with eligible contractors based on their ability to provide FI

services, experience, cultural and language competencies specific to the population served, and

geographic distribution particularly in underserved areas, among other factors. Section 365-f of

the SSL placed no limit on the number of FIs to which contracts could be awarded, and it did not

include reducing the number of FIs as a goal of the procurement process. The goal of the

CDPAP remained the same: to permit consumers greater flexibility and freedom of choice in

obtaining home care services. The more qualified FIs that contract with the DOH, the more

flexibility and freedom of choice consumers will have in obtaining services under the CDPAP.

When the DOH issued the RFO for FI contracts, on December 18, 2019, however, it revealed the

DOH’s intent to award the fewest number of contracts possible. See Dkt. 4 (Appendix) at 31.

Not only would this be problematic for patient choice and quality of care, it will also provide the

remaining FIs with more leverage for MLTC rate negotiations, ultimately costing the State more

in Medicaid funding.

Petitioners each timely submitted the required Administrative and Technical Offers in

response to the RFO. The DOH assembled a team of fifteen evaluators, purportedly randomly

assigned three to score each Technical Offer, and instructed them to assign a numeric score, on a

scale of 0 (not provided) to 5 (excellent), to offerors’ narrative responses for each RFO category.

Guidance provided to the evaluators regarding the grading scale lacked detail and consisted of

highly subjective descriptions (e.g., very good as “clearly and concisely demonstrated a high

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level of performance and approach” v. good as “demonstrated an adequate level of performance

and approach”), without any concrete or objective criteria. Dkt. 4 at 47. Evaluators were

permitted, but not required, to list the offerors’ strengths and weaknesses in each category. See

Dkt. 4 at 40-60. The DOH averaged the raw scores for each criterion across the three evaluators,

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

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

The lack of concrete guidance provided to the evaluators resulted in wildly inconsistent

scoring of similar narratives—or even virtually identical narratives—from different offerors.

Petitioners maintain that the evaluation process was inherently arbitrary, subjective, and unfair,

enabling the awards to be determined by chance and reliant on which evaluators scored the

offers, rather than the strength of the offers.

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

minimum qualifications and were eligible for evaluation. Of those, the DOH selected only 68

FIs to receive contract awards pursuant to the RFO—a reduction of approximately 85 percent of

the current number of FIs. 5 The DOH informed Petitioners Carefirst and Home Choice that their

offers had been disqualified and had not even been evaluated because of certain clerical or

scanning errors that had occurred with their offer transmissions to the DOH. The DOH notified

the remaining Petitioners that they had not been selected as contract recipients. See e.g., Pascal

Aff. at ¶ 17. All FIs that were not selected will be terminated from their participation in the

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

the OSC approving the contracts. 6 Although Petitioners requested debriefings pursuant to State

Finance Law (“SFL”) Section 163(9)(c)(iv), the DOH’s process was wholly inadequate. DOH

5
https://www.health.ny.gov/funding/rfo/20039/docs/awardees_names_and_counties.pdf.
6
https://www.health.ny.gov/health_care/medicaid/redesign/mrt90/mltc_policy/21-01.htm.

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failed to explain why the 68 successful offerors were selected, why Petitioners were not selected,

and how evaluators applied the selection criteria, including strengths and weaknesses. Pascal

Aff. at ¶¶ 18-20.

The 450 FIs operating in New York provide a broad range of cultural and language

competencies, consistent with the diversity of New York State. New FIs have formed because a

need has existed. Petitioners, for example, serve a multi-lingual and multi-cultural population of

consumers and FIs in the five Boroughs and Long Island, including in several underserved areas.

Many of Petitioners’ consumers are immigrants to the United States, and Petitioners have hired

employees who speak the same languages as the consumers they serve, understand the cultural

sensitivities and customs which may apply, and have invested time developing relationships

within their communities to understand specific local health care needs. Pascal Aff. at ¶¶ 8-11.

3. Petitioners’ FOIL requests

Shortly after receiving non-award letters in February 2021, Petitioners filed a FOIL

request for information that would shed light on DOH’s offer evaluation process. The FOIL

Request sought copies of, in relevant part, the full Technical Offer that the DOH received from

each bidder and the Technical Offer Evaluation Tool documents containing narrative

descriptions of the strengths and weaknesses of each offer and scoring by each evaluator.

Petitioners sought these documents with the belief that they might clarify why the successful

bidders were selected and Petitioners were not—as the SFL guarantees. They also may reflect

DOH’s flawed process in evaluating the offerors’ submissions and may confirm that scoring was

arbitrary, with similar or virtually identical narratives receiving divergent scores. Affidavit of

Yvonne Ward (hereinafter, Ward Aff.), ¶¶ 4-6.

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The DOH previously had made clear that both categories of documents—the Technical

Offers and the Technical Offer Evaluation Tools—would be subject to disclosure under FOIL.

The RFO had notified offerors that their offers would become State records available to the

public pursuant to FOIL. Offerors could “clearly and specifically designate” portions of their

offers that they believed constituted proprietary information exempt from FOIL. However, the

RFO noted: “Blanket assertions of proprietary material will not be accepted, and failure to

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

handling of such material.” See RFO § 5.9 (Dkt. 4 at 20).

Likewise, the DOH’s instructions to evaluators had stated that their comments, including

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

DOH’s “Technical Offer Instructions and Evaluation Tool” 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

scored.” Dkt. 4 at 42. 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.) Debriefings held by DOH in March of 2021 were done via Zoom

sessions, with either the Procurement Coordinator, Michael Lewandowski, or with Jackie

McGovern, an Associate Health Care Fiscal Analyst. Neither Mr. Lewandowski nor Ms.

McGovern had personal knowledge about the Petitioners’ evaluation; rather, they read comments

made by the evaluators in the three completed Technical Offer Evaluation Tools, and answered

general questions about the review process. Pascal Aff. at ¶ 19; Ward Aff. at ¶ 8. In addition,

they instructed Petitioners to submit FOIL requests for additional information sought and for

written copies of the evaluation tools. Ward Aff. at ¶ 9.

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Nevertheless, Respondents have denied Petitioners access to the Technical Offers and

Technical Offer Evaluation Tools through their excessive redactions to those documents. The

DOH acknowledged receipt of Petitioners’ FOIL Request on March 8, 2021. Dkt. 4 at 63. DOH

completed production after nearly a year of delay (id. at 186-87), but many of the materials that

DOH produced were so heavily redacted as to render them useless.

After initially offering no justification for redactions of Technical Offers, the DOH

subsequently invoked the FOIL exemption found in § 87(2)(d), for “trade secrets or

[information] 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.” See Dkt. 4 at 141. DOH did not provide

particularized, specific justifications for each redaction—that is, more than conclusory or generic

explanations or quoting the statutory language of the exemption—or evidence that disclosure of

commercial information will cause injury.

There were also inconsistencies in the extent of the redactions across different Technical

Offers. In many instances, all or nearly all of the Technical Offer is redacted; in others whole

pages and sections are redacted; and some offers have limited redactions or none whatsoever.

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

bidders Heart to Heart Home Care, Inc., 7 High Standard Home Care Inc., 8 and Link Homecare 9

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.; 10 only the

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

7
RAO Administrative Record (“RAO Admin”) 15695-15754.
8
RAO Admin 15979-15995.
9
RAO Admin 19064-19101
10
RAO Admin 16810-16904.

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are visible; 11 and Infiniti Home Care’s Technical Offer narrative, which exceeds 100 pages,

leaves only the three closing paragraphs unredacted. 12 Respondents offered 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. At the same time, however, some offers

have no redactions whatsoever—for example, those submitted by Bena Home Care Agency Inc.,

First Chinese Presbyterian Community Affairs Home Attendant Corporation, and HSM Personal

Care Corp.—or have limited redactions, even though the information is provided in response to

the very same questions.

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):

11
RAO Admin 06001-06036.
12
RAO Admin 17824-17936.

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Compare RAO Admin 26204 with RAO Admin 15714.

Likewise, the DOH redacted all comments that evaluators had made regarding

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

Evaluation Tools it produced, purportedly pursuant to Section 87(2)(g) of FOIL (as intra-agency

materials). See Dkt. 4 at 156-85 for representative examples.

4. Upcoming announcement of additional awards

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). 13 The current version of

13
https://hca-nys.org/full-press-to-stop-the-lhcsa-rfo-process-must-
continue/#:~:text=The%20RFO%20for%20Fiscal%20Intermediaries%20%28FIs%29%2C%20that%20preceded,Le
gislature%E2%80%99s%20reversal%20of%20most%20of%20DOH%E2%80%99s%20RFO%20actions (“The RFO
for Fiscal Intermediaries (FIs), that proceeded the LHCSA RFO, was chastised by the public, the industry and the

18 of 33
FILED: ALBANY COUNTY CLERK 12/28/2022 06:46 PM INDEX NO. 905064-22
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/28/2022

Section 365-f provides for additional contract awards for qualified offerors that meet certain

legislatively prescribed size thresholds. 14 Namely, DOH shall award contracts to offerors that

attest (to be confirmed by the Office of the Medicaid Inspector General) that they provided FI

services for at least 200 consumers in a city with a population of more than one million (i.e.,

New York City), or at least 50 consumers in another area of the state, during the first quarter of

2020, and that meet other requirements under the statute.

DOH issued the attestation form on September 30, 2022, and submissions were due by

November 29, 2022. DOH anticipate

Case Info

Judge

Gerald Connolly Track Judge’s New Case

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Document Filed Date

December 28, 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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