By STEVE BITTENBENDER
THE CENTER SQUARE CONTRIBUTOR
(The Center Square) – A group of New York home care businesses has filed a lawsuit against the state’s Department of Health (DOH), claiming the agency improperly withheld access to information regarding why they were not selected for state contracts.
The companies were among those not selected in a request for offers (RFO) for fiscal intermediaries (FI) or businesses that handle administrative work – such as payroll processing – for chronically ill or disabled Medicaid recipients eligible to receive home care. By having aides tend to them at their home, the individuals avoid going into a nursing home or other congregate care setting.
The lawsuit, filed last week, said the RFO awards will lead to an 80% reduction in the number of fiscal intermediaries working with the nearly 140,000 eligible recipients in New York’s Consumer Directed Personal Assistance Program.
The state awarded just 68 contracts in February 2021, and the more than 300 applicants not selected were entitled to a 15-minute debriefing with a DOH to receive an evaluation of their offer, their offers’ weaknesses and strengths and why their offers were not selected. Losing bidders could also receive tips on improving their responses for the next contract.
According to the lawsuit, the seven FIs did not receive a strengths-and-weaknesses evaluation. They, instead, were told to request an “evaluation tool” through New York’s Freedom of Information Law (FOIL) process.
From February to April, the plaintiffs combined to submit 16 FOIL requests seeking the scores for their proposals, scores for the winning bids in their service areas, any changes to the scoring criteria, documentation that showed when the scoring criteria was established and training documentation for the evaluators.
After getting several notices of extensions, the plaintiffs contacted the DOH FOIL appeals officer in September. The following day, DOH officials responded and asked for more information about the plaintiffs’ FOIL requests.
Eventually, the department responded with evaluation tool documents that had the strengths and weaknesses redacted. DOH officials also countered that the date the scoring criteria was developed was exempt from the FOIL law. So, too, were the training materials and any changes to the scoring guidelines.
Nearly a year after submitting the first FOIL requests, the plaintiffs say they have no other alternative but to sue for access. The suit also calls for the DOH to reopen bid debriefings.
They also seek a stay on the contract awards, which may take effect as soon as next month.
“Unless a stay is granted, Petitioners will suffer irreparable harm because they will start to lose consumers to FIs awarded contracts under the flawed RFO #20039 procurement process, they would not have had the opportunity to contest the denial of their awards under the RFO, and the FIs will continue to experience uncertainty and disruption to their current respective workforces,” the lawsuit states.