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 12/28/2022 06:46 PM INDEX NO. 905064-22
NYSCEF DOC. NO. 32 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- Index No. 905064-22

NEW YORK STATE DEPARTMENT OF HEALTH,
and MARY T. BASSETT, MD, MPH, in her official
capacity as Commissioner of Health of the State of
New York,

Respondents,

For a Judgment Pursuant to Article 78 of the N.Y. Civil
Practice Law & Rules (“CPLR”)

____________________________________

AFFIDAVIT OF ROUANDY PASCAL
IN SUPPORT OF PETITIONERS’ MOTION FOR TEMPORARY RESTRAINING
ORDER AND PRELIMINARY INJUNCTION

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Rouandy Pascal, being duly sworn, deposes and states under penalty of perjury:

1. My name is Rouandy Pascal, I am over the age of 18 years, and I am competent to

make this Affidavit. I have personal knowledge of the matters set forth in this Affidavit.

2. I am the CEO, administrator, and founder of Safe Haven Home Care, Inc. (“Safe

Haven”), a Licensed Home Care Services Agency (“LHCSA”), as well as a fiscal intermediary

(“FI”) that participates in the Consumer Directed Personal Assistance Program (“CDPAP”).

3. I founded Safe Haven in October 2008 as a LHCSA based out of Brooklyn, New

York. We began serving consumers in the CDPAP on or about December 1, 2017.

4. I had worked for large home care agencies prior to founding Safe Haven but I

found that the larger agencies I worked for were more interested in the bottom line than the

needs of the patients they served. My philosophy has always been that the patients are at the

center of what we do, and their needs come first. I sought to create an agency that was centered

around the patients’ needs and could be more agile and nimble, given its smaller size, to address

specific needs of our patients.

5. I have been a Registered Nurse for 32 years and have worked in home health care

for about 31 years. I also hold two Masters of Science degrees: one in Nursing Administration

and another in Nursing Informatics.

6. Safe Haven serves the following counties: Bronx, Kings, New York, Queens and

Richmond, but has remained relatively small by design; we currently serve about 73 patients

through our LHCSA services and approximately 176 consumers through our FI services.

7. Because of my patient-centered philosophy, I intentionally have kept Safe Haven

as a smaller, local FI in New York City, so that I can respond to each client’s needs in a way that

no big agency can.

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8. I am closely involved in all aspects of Safe Haven’s services to ensure consistent

quality and foster good relationships with patients.

9. Safe Haven’s multicultural employees serve a multicultural and diverse

community. Specifically, I speak English, Creole and French. Safe Haven’s employees also

include Creole and Spanish speakers.

10. Safe Haven uniquely caters to the Creole and Hispanic community that includes

persons from Haiti or of Haitian descent, and persons of Caribbean or Hispanic descent.

11. Because of its smaller size, Safe Haven is able to provide personal, individualized

attention that has led to many happy clients and employees that refer other community members

to Safe Haven.

12. In the 2017-2018 New York State Budget, the legislature created a new process

by which FIs would need to submit a request for authorization to the New York State

Department of Health (“DOH”) in order to continue providing services under the CDPAP. DOH

then began a process to implement this new requirement.

13. On or about December 13, 2017, I submitted my application for authorization,

consisting of 176 pages, to the DOH for Safe Haven to continue serving as an FI.

14. On or about January 2, 2019, I received confirmation from DOH that Safe Haven

had met all requirements and was approved for a five-year authorization, effective December 28,

2018.

15. Subsequently, I learned that amendments to the relevant Social Services Law

would eliminating the authorization process I had successfully completed and require a different

process for FIs to contract with the DOH.

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16. On or about March 2, 2020, I submitted an offer for Safe Haven in response to

RFO number 20039, New York State Fiscal Intermediaries for the Consumer Directed Personal

Assistance Program (hereinafter, the “RFO”), issued by the DOH in accordance with those

amendments. See RAO Admin 26148-26239.

17. On or about February 11, 2021, I received a letter from DOH stating that Safe

Haven was not selected as a contract recipient.

18. On or about February 18, 2021, I received a “written debriefing” which stated that

Safe Haven had received a total score of 62.28 out of 100 total points, for a ranking of 143 out of

373 offerors.

19. On or about March 11, 2021, I attended a debriefing held by the DOH via Zoom

session. Jackie McGovern from DOH led my debriefing, and she read certain comments that

evaluators had made about the strengths and weaknesses of Safe Haven’s offer. I recall asking

Ms. McGovern why I had received a failing score for my experience serving disabled

individuals, given my extensive experience in this area. I distinctly recall Ms. McGovern saying

that “some of these applications fell through the cracks.”

20. I still lack an understanding today of why Safe Haven was not selected to receive

a contract award, why the 68 successful offerors were chosen, and how the evaluators applied the

selection criteria, assigned scores, and judged strengths and weaknesses.

21. Safe Haven, through counsel, submitted a FOIL request to DOH for information

concerning the RFO, including the technical offers received from all bidders and the technical

offer evaluation tool documents containing narrative descriptions of the strengths and

weaknesses of each offer and scoring by each evaluator.

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22. We believed that these documents might clarify why the successful bidders were

selected and Safe Haven was not; reflect DOH’s potentially flawed process in evaluating the

offerors’ submissions; and allow us to determine if scoring was arbitrary, with similar or

virtually identical narratives receiving divergent scores.

23. Safe Haven was asked by DOH to propose redactions to its offer (in connection

with a FOIL request DOH had received), Safe Haven requested minimal redactions of the names

and contact information of Safe Haven’s subcontractors. After review of my submission, I did

not believe any other information contained within the Technical Offer was confidential business

information, let alone confidential business information that would cause Safe Haven substantial

harm if disclosed.

24. When we finally received the Technical Offers and Evaluation Tools from the

DOH, many of the Technical Offers were largely or completely redacted. In addition, all of the

evaluator’s comments on the Evaluation Tools were redacted.

25. For example, we received three Evaluation Tools for Safe Haven’s review, one

for each reviewer assigned to review Safe Haven’s offer. See RAO Admin 48575-48639. We

had also received Safe Haven’s Technical Proposal Score Tool, which contained the raw scoring

numbers by each reviewer. RAO Admin 32811.

26. The raw scoring tool revealed significant discrepancies between the three

reviewers’ scores, which make little sense to me based on my offer. For example, in question

6.2.F.1.2, Safe Haven received scores of 0 (“Not-Provided”), 1 (“Poor”), and 4 (“Very Good”).

See RAO Admin 32811.

27. This question asks the reviewers to “Evaluate the Offeror’s description of their

and/or their subcontractor(s) ability and experience serving member[s] with disabilities.” In my

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offer, we spent significant time describing our extensive ability and experience serving members

with disabilities. For example, we explained:

“The main reason that I opened my own agency is because I wanted to make a

difference in the lives of the elderly, underserved and disabled communities.”

RAO Admin 26178 (Offer at 15).

“My 30-year experience as a registered nurse, of which 29 years is in home care,

has prepared me to serve the disabled in my LHCSA.” Id.

“I can recall an instance when I was giving a referral to visit a creole speaking

patient with severe dementia. As I approached the patient, I addressed her in her

native tongue. She started smiling and spoke to me in a soft voice. As per her

daughter, this was the first time she saw her mom smile and speak in 2 months. I

played the supportive role as a nurse to bring comfort to the client.” Id. at 26178-

79.

“I get to stretch a helping hand to the disabled, the underserved, the chronically ill

and the caregivers on a regular basis.” Id. at 26179.

“I would very much like to continue offering the disabled people of my

community a choice and continue the same care and culturally appropriate

services to consumers, as I have been doing.” Id.

“Over 4 years experience as a LHSCA” Id. at 26193.

“Culturally specific program . . . Owner and Operator is an RN . . . Hands on

caring agency . . . A majority of our staff is bilingual, so communication amongst

our staff and our consumers is never an issue. All consumers, regardless of

ethnicity, are served with the same empathy and compassion.” Id.

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“Safe Haven Homecare will work in conjunction with local community boards

advisory groups for the disabled and aged, community advocates for the disabled,

and peer mentors.” Id. at 26203

28. Of the three Evaluation Tools we received from the DOH pursuant to our FOIL

request, two of the three evaluators provided comments to question 6.2.F.1.2. The evaluator that

scored Safe Haven a 4 (“Very Good”) in this category, provided comments under both strengths

and weaknesses. RAO Admin 48627-48639. The evaluator that scored Safe Haven a 0 (“Not-

Provided”) in this category, provided comments under weaknesses. Id. 48587, 48591. However,

all evaluator comments are redacted by the DOH. As a result, the production of these evaluation

tools provides no insight, whatsoever, into why Safe Haven received the scores that it did, or

what we could have done differently in our offer submission. It also makes it difficult for us to

explain to the Office of the State Comptroller (“OSC”) why we believe our offer was unfairly

graded, when the limited rationale provided by evaluators is missing.

29. In ten other categories, Safe Haven received evaluator scores which differed by

at least two points among evaluators (i.e., 2 v. 4, 1 v. 3), suggesting significant inconsistency in

application among the three reviewers that graded Safe Haven’s offer. See RAO Admin 32811.

30. Subsequently, another amendment to the Social Services Law has provided for

additional contract awards for FIs that meet certain size thresholds in the first quarter of 2020.

31. Since I have intentionally kept Safe Haven a smaller agency, designed to provide

better quality care to our patients, Safe Haven does not meet the size requirements and will not

receive an award through this process.

32. On or about October 25, 2022, I received a letter from the OSC indicating that,

once DOH announces the additional awards and informs Safe Haven of its non-award status,

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Safe Haven will have ten business days to submit a protest to the OSC. See Exhibit 1, OSC

Letter.

33. DOH’s website for the RFO indicates that DOH anticipates announcing the

additional contract awards on January 15, 2023.

34. Safe Haven intends to submit a protest to OSC challenging its non-award.

However, the information that Safe Haven sought in its FOIL request, but that DOH redacted, is

essential to its OSC protest, as it will assist Safe Haven, and the OSC, in understanding the

DOH’s evaluation of Safe Haven’s offer, the DOH’s evaluation of other offers, and whether the

DOH’s process was done fairly and consistently.

35. Safe Haven will not be able to effectively and fully submit its protest to the OSC

without the information sought pursuant to this proceeding.

36. If Safe Haven is unsuccessful in its OSC protest, DOH will try and shut Safe

Haven down as an operating FI.

37. This would harm our employees and the consumers we serve, as they have grown

accustomed to the quality of care Safe Haven provides, and may have difficulty finding an

alternative and adequate provider in our area of service. A large number of our consumers have

been our clients for many years at this point.

38. The loss of Safe Haven’s ability to serve consumers, the damage to its reputation

from not receiving a contract with the DOH, and the destruction of years of hard work by the

agency, will result in irreparable harm to Safe Haven.

39. Safe Haven would also be irreparably harmed by its inability to adequately make

its case to the OSC if it is deprived critical documents through this proceeding that are necessary

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to evaluate DOH's process and to fully articulate to the OSC why Safe Haven believes its

scoring was not fair.

Executed on December 28, 2022

o dy Pascal

Sworn to before me this28th day of December, 2022

Not Public

JENN1BA SILLA
NOTARY PUBLIC-STATE OF NEW YORK
No. 01S16297629
Qualified in Kings County
Commission Expires 02-24-20
My

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EXHIBIT 1

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THOMAs P. DiNAPOu 110 STATE sTRET
STATE COMPTROum ALBANY, NEW YORK 12236

STATB OF NBƒ YORK
OFFICE OF THE STATE COMFfROLLER

October 25, 2022

Re:Protests Submitted for Request for Offers
#20039 - New York State Fiscal
Intermediaries for the Consumer Directed
Personal Assistance Program

Dear Bidder:

365-f(4-a)(b-1),l
Pursuant to Social Services Law § the New York State Department of
Health (DOH) is instructed to make additional contract awards for itsFiscal Intermediaries for the
Consumer Directed Personal Assistance Program, provided that qualified applicants who were not
selected meet and attest to certain requirements as outlined in Social Services Law 365-
initially §
f(4-a)(b-1). The DOH has advised this Office that they intend to conduct an evaluation of the
attestations submitted in response to Request for Offers #20039 (RFO) to determine which
additional proposals merit a contract award. DOH has further advised this Office that upon
conclusion of this additional evaluation, itwill notify all of the previously non-awarded bidders of
their award or non-award status.

In light of DOH making additional awards under the RFO and to avoid potential confusion

resulting from the RFO's evolving award process, this Office will not consider previously
submitted protests, including supplemented protests. Instead, as outlined in the Office of the State
Comptroller's Contract Award Protest Procedure (link provided below), you may file a protest

setting forth the basis on which you are challenging any contracts awarded by DOH (including
refiling a previously submitted protest) with the Bureau of Contracts within 10 business days of
process.2
receiving notice of non-award from the DOH resulting from this new DOH award For
bidders that were originally disqualified under the initialRequest For Offers and had submitted a
bid protest pursuant such procurement, you may file a protest (including refiling a previously
submitted protest) with the Bureau of Contacts within 10 business days of receiving this letter.
Should you elect to filea protest, please copy DOH on your submission. This Office will begin

1 As amended Section 3 ofPÿrt PP of Chapter 57 of theLaws of 2022.
by
2
DOH has informed OSC thatitwillnot offerdebriefings inconnectipn with the additionalawards. Therefore,the
time to protest
begins upon receipt of noticeof contractaward. Ifdebriefings are conducted,the timeto filea protest
is within5 businessdays of thedebriefing.

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its review of any pmtests received once DOH submits the contracts and related precurement

record.

Any questions regarding the DOH's additional evaluation process for the RFO must be
directed to DOH's designated contact for this procurement, Sue Mantica at
Sue.Mantica@health.ny.gov. Details regarding the OfHce of the State Comptroller's Contract

Award Protest Procedure may be found on OSC's website at www.osc.state.ny.us and questions

regarding same may be directed to this Office.

Sincerely

--
Di ector of Contracts

cc: Sue Mantica, NYS DOH

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Case Info

Judge

Gerald Connolly Track Judge’s New Case

Case No.

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Document Filed Date

December 28, 2022

Case Filing Date

July 05, 2022

County

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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