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 01/12/2023 01:39 PM INDEX NO. 905064-22
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 01/12/2023

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”)

____________________________________

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

ORAL ARGUMENT REQUESTED

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TABLE OF CONTENTS

Page

I. Petitioners served Respondents with their Motion, which they were entitled to file ..........3

II. Petitioners are Likely to Prevail on the Merits and Injunctive Relief is Necessary
to Prevent Irreparable Harm.................................................................................................4

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TABLE OF AUTHORITIES

CASES

Abdur-Rashid v. NYC Police Dep’t, 31 N.Y.3d 217,100 N.E.3d 799 (2018)..............................4, 5

Consumer Directed Choices, Inc. v. New York State Off. of Medicaid Inspector Gen., 90
A.D.3d 1271, 935 N.Y.S.2d 352 (2011) ..............................................................................2

John P. v. Whalen, 54 NY2d 89 (1981) ...........................................................................................5

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) ...................................................................................................5

Prop. Valuation Analysts, Inc. v. Williams, 164 A.D.2d 131, 563 N.Y.S.2d 545 (1990) ................5

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) ............................................................................................................4

Title Guarantee Co. v. N.L.R.B., No. 75 CIV. 3828, 1975 WL 11990, at *3 (S.D.N.Y.
Nov. 28, 1975) .................................................................................................................5, 6

U.S. v. Levin, 20 Cr. 681 (S.D.N.Y. 2020) ......................................................................................2

STATUTES AND RULES

New York Freedom of Information Law (“FOIL”) .................................................................1, 4, 6

New York Public Officers Law § 84 ...............................................................................................1

New York CPLR § 6311(1) .............................................................................................................4

State Finance Law § 163(9) .............................................................................................................4

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Petitioners submit this reply in support of their Motion for Temporary Restraining Order

and Preliminary Injunction, filed December 28, 2022, and in opposition to Respondents’

answering affirmation, filed January 9, 2023. Respondents’ answering affirmation argues that

the Petitioners’ impending protests to the New York Office of the State Comptroller (“OSC”)

have “no relevance whatsoever to this proceeding.” (Dkt. 33 at 3.) In addition, they argue that

Petitioners failed to properly serve Respondents with this motion, that Petitioners have an

alternative remedy, i.e., to file their protests with the OSC (Dkt. 33 at 6), and that Petitioners

have not established a likelihood of success on the merits of this proceeding under the Freedom

of Information Law (“FOIL”) (Dkt 33 at 5-6).

The founding principle of the FOIL is that “a free society is maintained when government

is responsive and responsible to the public, and when the public is aware of governmental

actions.” NY Pub. Off. § 84. “[I]t is incumbent upon the state and its localities to extend public

accountability wherever and whenever feasible.” Id. The documents sought in this action, and

unlawfully withheld by Respondents, are essential to ensuring transparency to the public, as well

as to the OSC, regarding the DOH’s decision to eliminate about 85% of Fiscal Intermediaries

(“FIs”) in the State through its February 2021 award announcements, resulting from the Request

for Offer (“RFO”). The DOH’s drastic cuts may affect the ability of more than 70,000 elderly

and disabled consumers to continue receiving home care under the Consumer Directed Personal

Assistance Program (“CDPAP”), and the more than 100,000 personal assistants employed by FIs

to provide such care. 1

The DOH’s flawed evaluation process, which Petitioners will challenge in their OSC

protests, included an award to an FI whose owner was charged criminally with federal mail

1
It is not yet known how many additional size-based awards will be announced.

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fraud, wire fraud, and health care fraud several months before the RFO awards were issued, 2 and

awards to several FIs found by the New York Office of Medicaid Inspector General (“OMIG”)

or the U.S. Department of Health and Human Services to have engaged in billing fraud or

irregularities resulting in millions of dollars of harm to the Medicaid program. 3

For almost two years, Petitioners have been seeking documents from the DOH through

their FOIL requests, which would enable them to evaluate and fully challenge the DOH’s flawed

evaluation process to the OSC. While Respondents argue that this action has “no relevance

whatsoever” to the Petitioners’ protests, this action was brought for the sole purpose of

obtaining records for use with the OSC, in order to challenge DOH’s flawed evaluation process

to the OSC. Respondents’ continuous delay tactics and obfuscation are designed for one

purpose, to shield its review process from scrutiny with the OSC, the public, and the courts.

This motion seeks to prevent the irreparable harm that Petitioners will suffer, including

the deprivation of their due process rights, if Respondents are permitted to proceed with the OSC

process and seek validation of their flawed contract awards from the OSC, prior to this Court

deciding Petitioners’ FOIL challenge. Permitting Respondents to march forward without a

determination by this Court of Petitioners’ FOIL action would be the equivalent of leaving a

2
Indictment, U.S. v. Levin, 20 Cr. 681 (S.D.N.Y. 2020); see also “10 Defendants Arrested in Home-Health
Aide Fraud Scheme,” Dec. 16, 2020, https://www.justice.gov/usao-sdny/pr/10-defendants-arrested-home-health-
aide-fraud-scheme.

3
See e.g., Consumer Directed Choices, Inc. v. New York State Off. of Medicaid Inspector Gen., 90 A.D.3d 1271,
1272, 935 N.Y.S.2d 352, 353 (2011); Audit of Claims for Home Health and/or Personal Care Services Billed During
an Inpatient Hospital or Skilled Nursing Facility Stay Paid from January 1, 2014 to December 31, 2018, Final
Report, Audit # 2019Z07-017B (Consumer Directed Choices, Inc.); Final Report, Audit # 2012Z07-009W
(Concepts of Independence, Inc.), Sept. 13, 2012. “HRA Cuts Concepts and Clients,” New York Able, Vol. 23, No.
2 (July 2017) at 3; “Disabled New Yorkers Worry About Access To Care After City Cuts Provider,” Village Voice
(June 12, 2017), available at https://www.villagevoice.com/2017/06/12/disabled-new-yorkers-worry-about-access-
to-care-after-city-cutsprovider/; https://oig.hhs.gov/oas/reports/region2/20901005.pdf.

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discovery dispute for consideration after trial. The materials at the heart of this action are needed

before, not after, the OSC renders judgment.

The equitable relief being sought from this Court is squarely within its discretion and

authority, and should be exercised to maintain the status quo, preserve Petitioners’ rights, and to

protect the effectualness of any decision eventually rendered by this Court.

I. Petitioners served Respondents with their Motion, which they were entitled to
file

Respondents argue that they failed to receive proper notice of Petitioners motion, as the

motion was not personally served on Respondents. (Dkt. 33 at 2.) Had Petitioners brought this

motion at the commencement of the action, prior to Respondents’ appearance, they would be

correct. Indeed, when Petitioners filed their Order to Show Cause on July 5, 2022, they

subsequently served Respondents in person. (Dkt. 8-10.) On August 2, 2022, Stacey Hamilton,

an Assistant Attorney General appeared on behalf of Respondents, DOH and Commissioner

Mary T. Bassett in this action. As such, Respondents have consented to e-filing through

NYSCEF in this case. See NYSCEF User Manual, section X, at 45-46. 4 Respondents were

served when Petitioners electronically filed their motion. Id. As a courtesy, counsel for

Petitioners also provided Ms. Hamilton with an emailed service copy on December 28, 2022, and

the Respondents filed their answering affidavit on January 9, 2023. (Dkt. 33.)

Respondents also argue that Petitioners should be prohibited from filing their motion

because the Petition, filed on July 5, 2022, has already been fully briefed. (Dkt. 33 at 3.) First,

Petitioners have filed their motion in accordance with the Court’s statements during the

November 28, 2022 conference, in which the Court noted its preference for a briefed motion on

the issue of an injunction. Second, a motion for a preliminary injunction or temporary

4
https://iappscontent.courts.state.ny.us/NYSCEF/live/training/userManual.pdf

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restraining order may be brought at any point in a case, and the urgency of the relief sought has

become heightened due to DOH’s anticipated contract awards on or about January 15, 2023. See

NY CPLR § 6311(1) (contemplating filing motion for preliminary injunction “with the summons

or at any time thereafter and prior to judgment”).

II. Petitioners are Likely to Prevail on the Merits and Injunctive Relief is Necessary
to Prevent Irreparable Harm

Respondent’ answering affidavit focuses solely on the second issue raised in Petitioners’

Petition—the DOH reviewer comments on the evaluation tools—but ignores Petitioners’ primary

dispute, the fully or overly redacted Technical Offers. The irreparable harm described in

Petitioners’ motion (Dkt. 30 at 19-22) will manifest even if Petitioners only prevail on the merits

as to their primary category of materials that have been improperly withheld by Respondents.

Respondents’ answering affidavit is telling in that does not even attempt to counter Petitioners’

likelihood to succeed on the merits of this category of documents. These materials, however, are

necessary to evaluate the Respondents’ scoring and to illustrate the arbitrary nature of

Respondents’ review process to the OSC; thus, their receipt is necessary for Petitioners’

preservation of their due process rights, as well as the procedures and information guaranteed in

State Finance Law § 163(9). Cf. R.W. Granger & Sons, Inc. v. State of N.Y. Facilities Dev.

Corp., 207 A.D.2d 596, 597, 615 N.Y.S.2d 509 (1994) (due process required that unsuccessful

bidder receive explanation of rejection and opportunity to refute agency findings).

Moreover, while Respondents claim that Petitioners fail to offer any caselaw in support

of their position that this Court may enjoin agency action pending a FOIL determination,

Petitioners offered cases under FOIL and its federal counterpart, the Freedom of Information Act

(“FOIA”), finding just this. (Dkt. 30 at 21-22.) New York courts routinely look to federal

precedent under FOIA when interpreting FOIL, in light of the similarities between the state and

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federal statutes. See, e.g., Abdur-Rashid v. NYC Police Dep’t, 31 N.Y.3d 217, 231, 100 N.E.3d

799, 807 (2018) (“Given that our statute [FOIL] was modeled after FOIA, we have repeatedly

looked to federal precedent when interpreting FOIL”).

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

Nov. 28, 1975), the court enjoined the NLRB’s unfair labor practices hearing until the agency

responded to plaintiff’s FOIA request. The court reasoned that irreparable harm could result if

the NLRB hearing proceeded without plaintiff having the opportunity to adequately prepare with

the documents it sought under FOIA. According to that decision, “if the policy of [FOIA] is to

have any real value, the plaintiff is entitled to his discovery prior to the administrative action.”

Id. Likewise, Petitioners referred to a New York trial court order in an Article 78 proceeding

that challenged a property assessor’s refusal to provide documents sought under FOIL. In the

FOIL-related proceeding, the court enjoined a property assessment review board from holding

hearings on the separate but underlying review applications until the assessor provided the

documents. See Prop. Valuation Analysts, Inc. v. Williams, 164 A.D.2d 131, 135, 563 N.Y.S.2d

545, 547 (1990) (reversing trial court’s order on other grounds).

Respondents also point to Your Honor’s reference to John P. v. Whalen, 54 NY2d 89

(1981), when discussing a stay in the New York Advocates case. Index No. 910456-21, Dkt. 49,

at p. 26 (“The standing of one who seeks access to records under the Freedom of Information

Law is as a member of the public, and is neither enhanced nor restricted because he is also a

litigant or potential litigant.”). In Whalen, the Appellant, a physician, sought access to certain

patient records through FOIL and argued that his patients had already consented to his review of

their records; thus, confidentiality of the patient records should not be a basis to deny his FOIL

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request. Id. at 98-99. The Court rightly rejected this argument, finding that his right of access to

documents through FOIL was the same as any member of the public. Id.

Here, Petitioners do not argue that their rights to access materials through FOIL are any

different than any member of the public, nor do they argue that their access should be enhanced

as a result of their OSC protest. Instead, what Petitioners argue is that equitable relief of this

Court through an injunction is necessary to preserve the value of the Court’s decision in this

case, to protect due process rights of the Petitioners, and to ensure the fundamental purpose of

FOIL cannot be trampled by State delay.

Like in Title Guarantee Co., here, to deny Petitioners the “opportunity to review the

requested material prior to the hearing might effectively foreclose any value in the disclosure

ordered by this court.” 1975 WL 11990, at *3. Petitioners are not seeking an ultimate

determination of the parties’ rights or the merits of their bid protests through their motion.

Rather, they seek only to maintain the status quo until they obtain the documents to which they

are entitled under FOIL and the State Finance Law. These documents are essential to a fulsome

and meaningful review of Petitioners’ underlying challenges before the OSC.

For the foregoing reasons and those set forth in Petitioners’ Motion, Petitioners

respectfully request that the Court enjoin Respondents from announcing additional contract

awards and non-awards until this proceeding is resolved and Respondents have provided

Petitioners with the documents to which they are entitled under FOIL.

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DATED: January 12, 2023

Respectfully submitted,
Potomac Law Group

_____________________________
Derek Adams

Attorney for Petitioners
1300 Pennsylvania Avenue, NW Suite 700
Washington, DC 20004
(202) 743-1511
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 1886 words.

DATED: January 12, 2023

Respectfully submitted,

_____________________________
Derek Adams

Attorney for Petitioners
1300 Pennsylvania Avenue, NW Suite 700
Washington, DC 20004
dadams@potomaclaw.com

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Case Info

Judge

Gerald Connolly Track Judge’s New Case

Case No.

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Document Filed Date

January 12, 2023

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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