Dear :333 Market Street, 16th Floor | Harrisburg, PA 17101-2234 |
717.346.9903 | F 717.425.5343 | openrecords.pa.gov
February 5, 2021 PACFILED Michael Krimmel, Esq. Prothonotary
Commonwealth Court of Pennsylvania Pennsylvania Judicial Center 601
Commonwealth Avenue, Suite 4500 Harrisburg, PA 17106-2575
RE: Submission of Record in:
Aetna Better Health of Pennsylvania, Inc. v. Pennsylvania
Department of Human Services, No. 1 CD 2021
Dear Mr. Krimmel: We hereby submit the record in the
above-referenced matter. Section 1303 of the Right-to-Know Law, 65
P.S. §§ 67.101, et seq., (“RTKL”), defines the Record on Appeal as
“the record before a court shall consist of the request, the
agency’s response, the appeal filed under section 1101, the hearing
transcript, if any, and the final written determination of the
appeals officer.” Pursuant to Department of Transportation v.
Office of Open Records, 7 A.3d 329 (Pa. Commw. Ct. 2010), this
record includes all “evidence and documents admitted into evidence
by the appeals officer pursuant to Section 1102(a)(2).” The record
in this matter consists of the following: Office of Open Records
Docket No. 2020-2256:
1. The appeal filed by Mark Schwemler, on behalf of Aetna Better
Health of Pennsylvania, Inc. (“Requester”) to the Office of Open
Records (“OOR”), received November 6, 2020.
2. Official Notice of Appeal dated November 6, 2020, sent to both
parties by the OOR, advising them of the docket number and
identifying the appeals officer for the matter.
3. Email chain dated November 16, 2020 wherein the OOR grants the
Department of Human Services (“Department”) additional time to make
a submission and the Requester grants the OOR additional time to
issue the final determination.
Prothonotary February 5, 2021 Commonwealth Court of Pennsylvania
Page Two
4. Email chain dated November 19, 2020 through November 20, 2020
wherein the
OOR confirms the Requester’s withdrawal of a portion of the
appeal.
5. Department’s submission dated November 23, 2020.
6. The Final Determination dated December 3, 2020, issued by the
OOR.
The OOR has discretion to hold a hearing on appeals filed but chose
not to do so in this matter. Therefore, there is no transcript to
transmit. Certification of the record in this case is attached to
this letter. Please feel free to contact us for any reason in
connection with this matter. Sincerely,
Charles Rees Brown Chief Counsel Attachments cc: See certificate of
service
Commonwealth of Pennsylvania
I, Elizabeth Wagenseller, certify that the accompanying
electronically transmitted materials are true
and correct copies of all materials filed in the Office of Open
Records and constitute the record for :
Aetna Better Health of
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
AETNA BETTER HEALTH OF : OF PENNSYLVANIA, INC., : Petitioner, : :
No. 1 CD 2021 v. : : PENNSYLVANIA DEPARTMENT : OF HUMAN SERVICES, :
Respondent. :
CERTIFIED RECORD
Charles Rees Brown Chief Counsel Commonwealth of Pennsylvania
Office of Open Records 333 Market Street, 16th Floor Harrisburg, PA
17101-2234 Phone: (717) 346-9903 Fax: (717) 425-53123 E-mail:
[email protected]
February 5, 2021
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
AETNA BETTER HEALTH OF : OF PENNSYLVANIA, INC., : Petitioner, : :
No. 1 CD 2021 v. : : PENNSYLVANIA DEPARTMENT : OF HUMAN SERVICES, :
Respondent. :
CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct copy of the
Certified Record upon the following persons via email only: Thomas
Helbig, Jr., Esquire Mark J. Schwemler, Esquire Gregory S. Voshell,
Esquire Elliott Greenleaf, PC 925 Harvest Dr., Suite 300 Blue Bell,
PA 19422
[email protected] [email protected]
[email protected] (for Aetna Better Health of PA, Inc.)
Kenneth J. Serafin, Esquire Pennsylvania Department Of Human
Services 625 Forster Street Harrisburg, PA 17120
[email protected]
(for Department of Human Services) Joshua J. Voss, Esquire
Kleinbard, LLC One Liberty Place, 46th Floor Philadelphia, PA 19103
[email protected] (for PA Health and Wellness, Inc.)
Thomas A. Leonard, Esquire Obermayer, Rebmann, Maxwell &
Hippel, LLP 1500 Market St., Suite 3400 Ctr Sq W Philadelphia, PA
19102
[email protected] (for Vista Health Plan, Inc.)
Jessica C. Abrahams, Esquire Faegre Drinker Biddle & Reath LLP
1500 K Street NW Suite 1100 Washington, DC 20005
[email protected] (for UPMC For You, Inc.) Brian
S. Gocial, Esquire Joel Michel, Esquire Blank Rome, LLP 1 Logan
Square Philadelphia, PA 19103
[email protected] (for Geisinger
Health Plan)
Received 2/5/2021 1:37:58 PM Commonwealth Court of
Pennsylvania
Sean Shafiq Zabaneh, Esquire DuaneMorris LLP 30 South 17th Street
Philadelphia, PA 19103-4196
[email protected] (for Health
Partners Plan) Kevin J. McKeon, Esquire Melissa A. Chapaska,
Esquire Hawke McKeon & Sniscak 100 North 10th Street
Harrisburg, PA 17101
[email protected] [email protected]
(for UnitedHealthcare of PA, Inc.)
C. Grainger Bowman, Esquire K & L Gates LLP 17 N. Second
Street, 18th Floor Harrisburg, PA 17101
[email protected]
(for Gateway Health Plan, Inc.)
Faith Henry, Administrative Officer Office of Open Records 333
Market Street, 16th Floor Harrisburg, PA 17101-2234 Phone: (717)
346-9903 Fax: (717) 425-53123 E-mail:
[email protected]
Dated: February 5, 2021
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
AETNA BETTER HEALTH OF : OF PENNSYLVANIA, INC. : Petitioner, : :
No. 1 CD 2021 v. : : PENNSYLVANIA DEPARTMENT : OF HUMAN SERVICES, :
Respondent. :
TABLE OF CONTENTS - RECORD
Mark Schwemler and Aetna Better Health of Pennsylvania, Inc. v.
Pennsylvania
Department of Health, OOR Dkt. AP 2020-2256
Office of Open Records Docket No. AP 2020-2256:
1. The appeal filed by Mark Schwemler, on behalf of Aetna Better
Health of Pennsylvania, Inc. (“Requester”) to the Office of Open
Records (“OOR”), received November 6, 2020.
2. Official Notice of Appeal dated November 6, 2020, sent to both
parties by the OOR, advising them of the docket number and
identifying the appeals officer for the matter.
3. Email chain dated November 16, 2020 wherein the OOR grants the
Department of Human Services (“Department”) additional time to make
a submission and the Requester grants the OOR additional time to
issue the final determination.
4. Email chain dated November 19, 2020 through November 20, 2020
wherein the OOR confirms the Requester’s withdrawal of a portion of
the appeal.
5. Department’s submission dated November 23, 2020.
6. The Final Determination dated December 3, 2020, issued by the
OOR.
OOR Exhibit 1
Mark J. Schwemler, Esq
Mr. Erik Arneson
Re: Right to Know Law Appeal from Request No. 20-RTKL-360
Dear Mr. Arneson:
Aetna Better Health of Pennsylvania Inc. (“Aetna”) files this
Appeal of the Department of
Human Services (the “Department”) October 16, 2020 decision
granting in part and denying in
part Aetna’s Right to Know Law (“RTKL”) requests. Attached as
Exhibit 1 are Aetna’s September
9, 2020 RTKL requests, in which Aetna made four (4) specific
requests for records. Attached as
Exhibit 2 is the October 16, 2020 response of the Department. The
Department indicated that it
possessed records responsive to Aetna’s requests, however, it
denied Aetna’s first two record
requests relying upon the exemption sent forth at 65 P.S. §
67.708(b)(26).1 (Ex. 2 at 2.) As set
forth below, however, the Department failed to meet its burden for
withholding records and
improperly relied upon the exemption set forth at 65 P.S. §
67.708(b)(26).
I. ARGUMENT
A. Legal Principles
Under the RTKL, records in the possession of a state agency are
presumed to be a public
record unless, “the record is exempt from disclosure under Section
708, or the record is exempt
from disclosure under any other federal or state law or
regulation.” Easton Area Sch. Dist. v.
Miller, 232 A.3d 716, 724 (Pa. 2020). “Consistent with the RTKL’s
goal of promoting government
transparency and its remedial nature, the exceptions to disclosure
of public records must be
1 DHS also redacted personally identifiable information contained
in the records
responsive to Aetna’s third and fourth requests, which Aetna does
not challenge. (Ex. 2 at 2.)
OOR Exhibit 1 Page 002
II Elliott Greenleaf II A Professional Corporation
BLUE BELL HARRISBURG SCRANTON
Phone: (215) 977-1000 • Fax: (215) 977-1099
www.elliottgreenleaf.com
WILKES- BARRE WILMINGTON
November 6, 2020
narrowly construed.” Id.; see also California Univ. of Pennsylvania
v. Schackner, 168 A.3d 413,
421 (Pa. Commw. Ct. 2017) (same). The agency “has the burden of
proving that a record is exempt
from public access ‘by a preponderance of the evidence.’” Easton
Area Sch. Dist., 232 A.3d at
724.
B. UnitedHealthcare of Pennsylvania, Inc. v. Pennsylvania, Dep’t of
Human Servs.,
187 A.3d 1046 (Pa. Cmwlth. Ct. 2018) Is Inapposite Because Portions
of the
Application At Issue Have Already Been Publicly Disclosed.
Aetna’s first request sought a discrete portion of the Application
submitted by
UnitedHealthcare of Pennsylvania, Inc. (“United”), specifically
United’s “Work Statement
Questionnaire Responses to Member Management Question 3 and Care
Management Question 7.”
(Ex. 1 at 1.) The Department denied Aetna’s request stating that it
was not required to disclose
United’s Application until after a contract is awarded, relying on
the exemption set forth at 65 P.S.
§ 67.708(b)(26) and UnitedHealthcare of Pennsylvania, Inc. v.
Pennsylvania, Dep’t of Human
Servs., 187 A.3d 1046 (Pa. Cmwlth. Ct. 2018). (Ex. 2 at 2.)
In United, however, the Court explained that the rationale behind
preventing disclosure
until an actual contract is awarded is because “[p]rematurely
granting access to proposal
documents prior to the award of the contract could bestow an unfair
advantage on competitors in
any subsequent bidding” if the Request for Proposal was later
rescinded and the project rebid. Id.
at 1053. This, the Court found, would not be consistent with the
purpose of this exemption, which
is “to foster competitive bidding until a contract is awarded.” Id.
at 1058. In other words, the
purpose of this exemption is to benefit the bidder who submitted
the application, by preventing the
information in that application from being disclosed prior to the
award of a contract, in the event
that the contract is re-bid. Id.
But, here, United itself has already publicly disclosed aspects of
its “Work Statement
Questionnaire Responses to Member Management Question 3 and Care
Management Question 7.”
Indeed, on July 8, 2020, United filed a bid protest relating to RFA
No. 07-19, in which it disclosed
specific details regarding these portions of its proposal. (Ex. 3
at 8-9). United described an alleged
“innovative feature” concerning its idea to put a “regional
council” in place, which the Department
then improperly shared with other applicants, before a decision was
made on the applications, in
the hope that others would adopt the concept. (Id.)2 Accordingly,
unlike in UnitedHealthcare,
here disclosure of this portion of United’s application carries no
risk of bestowing “an unfair
advantage on competitors in any subsequent bidding” and will not
prejudice this exemption’s goal
of “foster[ing] competitive bidding” because United itself has
taken the affirmative step of
disclosing information regarding these portions of its application.
UnitedHealthcare, 187 A.3d at
1053.
2 Aetna has submitted a bid protest of its own based on the
information disclosed by
United in its July 8, 2020 protest. The public records being sought
are therefore essential to
Aetna’s protest.
OOR Exhibit 1 Page 003
Mr. Erik Arneson Right to Know Law Appeal from Request No.
20-RTKL-360
November 6, 2020
Page 3
Moreover, as UnitedHealthcare makes clear, this exemption is meant
for the benefit of the
bidder whose proposal is being sought so as to not place that
bidder at a competitive disadvantage
in any subsequent re-bid. UnitedHealthcare, 187 A.3d at 1058. But,
it is United itself that has
taken the affirmative step of disclosing portions of its
applications to the public in its bid protest.
(Ex. 3 at 8-9.) In other contexts, courts routinely find that any
confidentiality and/or privilege that
attached to information was waived when a person places their own
confidential and/or privileged
information at issue. See Octave ex rel. Octave v. Walker, 103 A.3d
1255, 1263 (Pa. 2014)
(confidentiality of mental health records is waived by filing
lawsuit which places those records at
issue); Rost v. State Bd. of Psychology, 659 A.2d 626, 629 (Pa.
Commw. Ct. 1995)
(psychotherapist-patient privilege is waived where “the client
places the confidential
information at issue.”); Commonwealth v. McCullough, 201 A.3d 221,
241 (Pa. Super. Ct. 2018)
(attorney-client privilege can be waived by placing the
confidential information at issue). This is
true even where the confidential information was placed “at issue”
in a separate proceeding. See
Com. v. Hunter, 60 A.3d 156, 160 (Pa. Super. Ct. 2013) (spousal
privileged was waived because
communications were placed at issue in separate child welfare
proceedings).
Accordingly, for all the above reasons, the Department erred in
denying Aetna’s first
request based upon the exemption set forth at 67.708(b)(26) and
UnitedHealthcare.
C. The Department Did Not Address The Substance Of Aetna’s Second
Request
And Failed To Show That The One Responsive Record Identified Was
Exempt
From Disclosure.
In Aetna’s second request, Aetna sought: “All records reflecting
the transmission of the
contents or substance of the records described in item No. 1,
above, to any DHS employee or
representative between December 17, 2019 and July 1, 2020.” (Ex. 1
at 1.) Aetna sought records
reflecting who in the Department received a copy of United’s
application before selections were
made. In response, the Department indicated that there was only one
record that was responsive
to this request, “a communication with the evaluation committee
about how to access the submitted
proposals.” (Ex. 2 at 2.) However, the Department has failed to
submit any affidavit or other
evidence in support of its assertion that there is only one (1)
record responsive to this request, and
thus, has failed to meet its burden. Easton Area Sch. Dist., 232
A.3d at 724 (agency has “a
preponderance of the evidence” burden).
As a preliminary matter, the Department’s Response seems to
purposely misconstrue
Aetna’s request. Aetna is seeking who in the Department received a
copy of United’s Application.
(Ex. 1.) This would be reflected in the Department’s own records,
not in the records of
communications with evaluation committee members. It is impossible
to claim, also, that no one
in the Department received a copy of United’s application.
Obviously, it had to be received and
distributed within the Department.
With respect to the one record identified by the Department,
however, it was withheld
pursuant to 65 P.S. § 67.708(b)(26), claiming that the
communication constituted “notes and other
records of agency proposal evaluation committees established under
62 Pa. C.S. § 513 (relating to
competitive sealed proposals).” (Id.) However, the Office of Open
Records has held that “[t]o
OOR Exhibit 1 Page 004
Mr. Erik Arneson Right to Know Law Appeal from Request No.
20-RTKL-360
November 6, 2020
Page 4
qualify under (b)(26), the records must show the evaluations and
considerations of the Evaluation
Committee, not merely be records that are considered by the
Committee.” Team Clean, Inc., v.
School District Of Philadelphia, 2011 WL 1553558, at *3
(Pa.Off.Open Rec., Apr. 21, 2011).
Moreover, the record must be one that was “used by an evaluation
committee during the course of
evaluations of competitively bid proposals.” Aetna Better Health Of
Pennsylvania, Inc., v.
Pennsylvania Department Of Human Services, 2017 WL 3048838, at *8-9
(Pa.Off.Open Rec. July
14, 2017).
Here, the Department has failed to explain how this communication
from the Department
to the evaluation committee could possibly “show the evaluations
and considerations of the
Evaluation Committee” or be “used by an evaluation committee during
the course of evaluations
of competitively bid proposals.” Team Clean, Inc, 2011 WL 1553558,
at *3; Aetna Better Health
Of Pennsylvania, Inc, 2017 WL 3048838, at *8-9. Accordingly, the
Department has failed to carry
its burden of showing that even this one record is exempt pursuant
to 65 P.S. § 67.708(b)(26).
II. CONCLUSION
DHS bears the burden of demonstrating the applicability of the
RTKL’s narrowly
construed exceptions. It has failed to do so here for the reasons
set forth above, or has avoided
addressing the substance of Aetna’s requests, altogether. Aetna
respectfully requests that the
Office of Open Records direct DHS to produce all withheld
records.
Sincerely,
EXHIBIT 1
Ii Elliott Greenleaf ii A Professional Corporation
MARK J. SCHWEMLER, ESQ.
DIRECT DIAL: 215-977-1051 EMAIL: MJS@ELLIOTTGREENLEJ\F.COM
VIA ELECTRONIC AND FIRST CLASS MAIL
Andrea Bankes Agency Open Records Officer Department of Human
Services Room 234, Health and Welfare Building P.O. Box 2675
Han-isburg, PA 17105
[email protected]
RE: Request for Applications No. 07-19
Dear Ms. Bankes:
Phone: (215) 977-1000 • Fax: (215) 977-1099
www.elliottgrcenlcaf.com
September 9, 2020
This firm represents Aetna Better Health of Pennsylvania Inc.
("Aetna"). Pursuant to the Pennsylvania Right to Know Law, 65 P.S.
§67.101, et seq., I hereby request copies of the following public
records of the Department of Human Services ("DHS"):
1. That portion of the response ofUnitedHealthcare of Pennsylvania,
Inc. ("United") to Request for Applications ("RFA") 07-19
consisting of that applicant's Work Statement Questionnaire
Responses to Member Management Question 3 and Care Management
Question 7. These aspects of United's application are specifically
referenced in United's July 8, 2020 protest as to RFA 07-19, and
fo1m the basis of one aspect of that protest.
2. All records reflecting the transmission of the contents or
substance of the records described in item No. 1, above, to any DHS
employee or representative between December 17, 2019 and July l,
2020.
3. All records reflecting communications between the Secretary of
DHS, or her staff, and any managed care organization that submitted
a response to RF A 07-19, regarding the concept of "regional
councils" to be utilized in connection with the HealthChoices
program. This request is limited in time to communications occuning
between December 17, 2019 and July 1, 2020.
BLUE BELL HARRISBURG SCRANTON WILKES-BARRE WILMINGTON
OOR Exhibit 1 Page 008
Andrea Bankes Request for Applications No. 07-19 September 9, 2020
Page 2
4. All records reflecting communications between the Secretary of
DHS, or her staff, and any employee or representative of Health
Paiiners Plan, as to the convening of a forum among managed care
organizations to discuss the concept of "regional counci ls" in
connection with the HealthChoices program.
The Pennsylvania Right to Know Law requires a response time within
five (5) business days. However, we request that all responses to
these requests be returned prior to any debriefing session to be
conducted with Aetna in connection with RF A 07-19. If any requests
are denied, please cite each specific exemption that justifies the
refusal to release the inf01mation and notify the undersigned of
any appeal procedures. Any questions can also be forwarded to the
undersigned.
Very truly yours,
OOR Exhibit 1 Page 009
Agency Open Records Office P.O. Box 2675 | Harrisburg, PA 17105 |
717.787.3422 | F 717.772.2490 | www.dhs.pa.gov
October 16, 2020 SENT VIA EMAIL Mark J. Schwemler, Esq. Elliott
Greenleaf 925 Harvest Drive, Suite 300 Blue Bell, Pennsylvania
19422 Email:
[email protected] RE: Right-To-Know Law Request
No. 20-RTKL-360 Dear Mr. Schwemler: The Department of Human
Services (department) received your request for information
pursuant to the Pennsylvania Right-To-Know Law, 65 P.S. §§ 67.101 –
67.3104 (RTKL). On September 16, 2020, an interim communication was
sent to you indicating that up to an additional 30 days would be
needed to respond to your request. Your Request Your request for
records is as follows:
1. That portion of the response of UnitedHealthcare of
Pennsylvania, Inc. ("United") to Request for Applications ("RFA")
07-19 consisting of that applicant's Work Statement Questionnaire
Responses to Member Management Question 3 and Care Management
Question 7. These aspects of United's application are specifically
referenced in United's July 8, 2020 protest as to RF A 07-19, and
form the basis of one aspect of that protest.
2. All records reflecting the transmission of the contents or
substance of the records
described in item No. 1, above, to any DHS employee or
representative between December 17, 2019 and July 1, 2020.
3. All records reflecting communications between the Secretary of
DHS, or her staff,
and any managed care organization that submitted a response to RF A
07-19, regarding the concept of "regional councils" to be utilized
in connection with the HealthChoices program. This request is
limited in time to communications occurring between December 17,
2019 and July 1, 2020.
4. All records reflecting communications between the Secretary of
DHS, or her staff,
and any employee or representative of Health Partners Plan, as to
the convening
OOR Exhibit 1 Page 010
,tit pennsylvania ., DEPARTMENT OF HUMAN SERVICES
of a forum among managed care organizations to discuss the concept
of "regional councils" in connection with the HealthChoices
program.
The Department’s Response to Your Request Part 1 Your request is
denied. The records requested are part of the application proposal
submitted by United in response to RFA 07-19. Pursuant to the RTKL,
“[a] proposal pertaining to agency procurement or disposal of
supplies, services or construction” is exempt from the definition
of “public record” until “the award of the contract.” 65 P.S. §
67.708(b)(26). See UnitedHealthcare of Pennsylvania, Inc. v.
Pennsylvania Dep't of Human Servs., 187 A.3d 1046 (Pa. Cmwlth.
2018). An agreement has not yet been awarded. Part 2 Your request
is denied. There is only one record responsive to your request. It
is a communication with the evaluation committee about how to
access the submitted proposals. Pursuant to the RTKL, “the identity
of members, notes and other records of agency proposal evaluation
committees established under 62 Pa.C.S. § 513 (relating to
competitive sealed proposals)” are exempted from the definition of
“public record.” 65 P.S. § 67.708(b)(26). Parts 3 and 4 Your
request is granted in part and denied in part. Along with this
letter, the department is providing you with records responsive to
your request. However, some information has been redacted because
it is exempt from disclosure by law, as follows:
• Personal Identification Information: The department has redacted
personal identification information from the records. Pursuant to
the RTKL, “a record containing all of part of a person’s Social
Security number…home, cellular or personal telephone numbers;
personal email addresses;…or other confidential personal
identification number” is exempt from disclosure. 65 P.S. §
67.708(6)(i)(A).
Duplication Fee The department is permitted to charge up to $.25
cents per page for requested documents. In accordance with the
policy that a fee will not be assessed when records are provided
electronically, no fee is due.
OOR Exhibit 1 Page 011
3
Appeal Rights With regard to records that were not produced within
this response, you have a right to appeal in writing to the
Executive Director, Office of Open Records (OOR), 333 Market
Street, 16th Floor, Harrisburg, PA 17126-0333. If you choose to
file an appeal you must do so within 15 business days of the
mailing date of this response and send to the OOR:
1. This response; 2. Your request; and 3. The reasons why you think
the record is public (a statement of the grounds you
assert for the requested record being a public record) and why you
think the department is wrong in its reasons for saying that the
record is not public (a statement that addresses any ground stated
by the department for the denial, which you are challenging); if
the department gave several reasons why the record is not public,
state which ones you think were wrong.
All of the above must be submitted in order for the appeal to be
valid. The OOR has an appeal form available on its website at:
https://www.openrecords.pa.gov/Appeals/HowToFile.cfm. If you have
any questions related to this RTKL response, please contact me.
Sincerely, Andrea Bankes Agency Open Records Officer
Attachments
OOR Exhibit 1 Page 012
OOR Exhibit 1 Page 013
50 South Sixth Street | Suite 1500 | Minneapolis, MN | 55402-1498 |
T 612.340.2600 | F 612.340.2868 | dorsey.com
ALEX P. HONTOS (612) 492-6634
FAX (612) 677-3403
[email protected]
July 8, 2020
Mr. DeShawn Lewis Department of Human Services Office of
Administration, Bureau of Procurement & Contract Management
Room 824 Health and Welfare Building 625 Forster Street Harrisburg,
Pennsylvania 17120
[email protected]
Dear Mr. Lewis:
It is already clear that the process used by the State of
Pennsylvania Department of Human Services (“DHS”) Office of
Administration, Bureau of Procurement & Contract Management in
issuing its HealthChoices awards was fundamentally flawed. In
addition, the decision to non-select UnitedHealthcare of
Pennsylvania, Inc. (“United”) for further negotiations in all but
four zones was arbitrary and capricious. United has identified
multiple grounds that independently warrant reversal of the
decision to non-select United for four zones:
• DHS changed the readiness review criteria in Request for
Application (“RFA”) criteria months after final applications had
been submitted and mere weeks before issuing its notices of
selection;
• DHS utilized a preference for vertically integrated MCO systems
even though the RFA never identified this as a criteria for
selection;
• DHS engaged in improper communications and appears to have
permitted applicants to alter their applications after the
submission date;
• DHS failed to adequately consider negative information related to
applicant work- stoppages in violation of the RFA; and
• DHS failed to engage in a competitive award process that is
contrary to federal law.
Given the numerous and serious flaws that have been identified to
date, United asks DHS to take quick and voluntary corrective action
and to avoid a drawn-out protest process.1
1 United respectfully submits this protest even though DHS has not
yet made “awards” as contemplated by the RFA to conserve state
resources. United has not received responses to its PA
Right-to-Know Law requests, submitted to DHS on July 2, 2020, nor
has DHS provided the debriefing required by RFA Paragraph I-25.
Accordingly, United reserves its right to supplement this protest
if and when additional information about DHS’s decisions becomes
available.
OOR Exhibit 1 Page 014
C]) DORSEY'" always ahead
I. FACTUAL BACKGROUND
The HealthChoices Physical Health Program is Pennsylvania’s (the
“PH Program”) statewide mandatory managed care program through
which the majority of Medical Assistance (“MA”) beneficiaries
receive physical health services. For the most part, the costs,
utilization, and quality of the PH Program is carried out by
Managed Care Organizations (“MCOs”), which deliver Medical
Assistance benefits and additional services through contracts with
the State. Indeed, since DHS began contracting with MCOs such as
United, the PH Program experienced an improvement in care for
populations with chronic and complex conditions, payment incentives
aligned with performance goals, and higher accountability for high
quality care.
On October 15, 2019, DHS issued Request for Application No. 07-19
(the “RFA”), which sought applicants to serve as MCOs in the
following five HealthChoices zones: Lehigh/Capital, Northeast,
Northwest, Southeast, and Southwest.2 Within each zone, DHS
contemplated multiple MCO awards as follows:
• Southeast: 4-5 • Southwest: 3-5 • Lehigh/Capital: 3-5 •
Northwest: 3-4 • Northeast: 3-4
(Exhibit A at 4). The RFA contemplated the award of contracts with
an initial term of five years, and an option to extend each
contract for an additional three-year period. (Ex. A at I-22.)
Between the date of the issuance of the RFA and the date
applications were due, the RFA was amended eight times.
In order to submit an application, MCOs needed to adhere to
numerous conditions described in the RFA, including requirements
regarding information and materials, a description of the services
to be provided, eligibility standards, and general evaluation
criteria. (Ex. A at I- 1). Specifically, applications were to be
evaluated on three technical factors:
2 The issuance of the RFA followed Pennsylvania’s attempts in 2016
and 2017 to award new contracts under Requests for Procurement. As
a result, the PH Program currently operates under extensions of
contracts originally awarded in 2012.
OOR Exhibit 1 Page 015
C]) DORSEY'" always ahead
Factor Weight
Personnel Qualifications and Staffing 5%
Prior Experience and Performance 10%
(Ex. A at II-4.) Further, the RFA provided an additional 3% bonus
for Domestic Workforce Utilization. (Ex. A at II-4.) In order to
qualify for award selection, an MCO’s raw score for the technical
factors needed to reach 75 percent or greater. (Ex. A at
II-5.)
By submitting an application, each MCO attested that all
information submitted in the application was material and
important. (Ex. A at I-23.) This information included, among other
things, evidence that the MCO is able to fully execute contractual
requirements with integrity and reliability. (Ex. A at II-5).
Moreover, each MCO was to ensure compliance “with all federal and
Pennsylvania laws…[and laws] governing participation in the MA
program.” (Ex. A at I-23 and III-1.) The purpose of the attestation
was to allow DHS to rely upon the information in the application in
awarding each contract. (Id.) If an application had a nonconformity
with the requirements set out in the RFA, DHS reserved sole
discretion to waive the nonconformity, allow the MCO to cure the
nonconformity, or to “consider the nonconformity in the scoring of
Applicant’s application.” (Ex. A at II-2.) To be deemed
responsible, an applicant must “submit a responsible application
and possess the capability to fully perform the Agreement
requirements in all respects and the integrity and reliability to
result in good faith performance of the Agreement.” (Ex. A at
II-5.)
If a potential applicant needed any additional information about
the RFA, the sole point of contact authorized by the RFA was Karen
Kern at
[email protected]. (Ex. A at I-2.) Questions were
due by or before November 5, 2019. (Ex. A at 5.) Other than this
process, the RFA contemplated communication between potential
applicants and DHS only through Best and Final Offers and
contractual negotiations.
A successful applicant would be notified that it was selected for
negotiations. (Ex. A at I- 24(A).) Applicants were to be informed
of selections for negotiation by April 1, 2020. After negotiations
were completed and agreements were signed, the RFA provides that
unsuccessful applicants would be notified of the award decision.
(Ex. A at I-24(B).)
Responses to the RFA were due on December 17, 2019. (Ex. A at 5.)
The deadline was extended to January 6, 2020. (Exhibit B, Addendum
8.) United timely submitted its application and, on July 1, 2020,
received a letter stating that DHS selected United’s application
for the Southeast Zone for agreement negotiations, but no other
zones. (Exhibit C.) That same letter listed the applicants chosen
for negotiation in each other zone. Also on July 1, DHS issued a
corrected letter clarifying a typing error. (Exhibit D.) The other
MCOs selected for further negotiations were:
OOR Exhibit 1 Page 016
CJ» DORSEY" always ahead
MCO Zones
Northwest, Southwest, Southeast
Northwest, Southwest, Southeast
Northwest, Southwest, Southeast
Northwest, Southwest, Southeast Gateway Health Plan Lehigh/Capital,
Southwest
This letter protest is submitted on July 8, seven days after United
was informed that it was not selected for negotiation in four of
the five zones and after United learned the identity of the MCOs
that DHS contemplated negotiating with in those zones.
II. LEGAL FRAMEWORK
In the context of competitive awards3, an agency must adhere to the
terms of the solicitation document throughout the evaluation
process. See Lagsday v. Allegheny Cty., 453 A.2d 949, 954 (Pa.
1982); accord Weathers v. Sch. Dist. of Phila., 383 F. Supp. 3d
388, 403 (E.D. Pa. 2019) (explaining that agency is obligated to
adhere to solicitation documents). Likewise, an award cannot be
made that is the product of extraneous or unstated award criteria
that are not found in the solicitation document. See D'Eramo v.
Allegheny Cty., 37 A.3d 84 (Pa. Commw. Ct. 2012) (affirming
injunctive relief due to deviations from the solicitation’s
mandatory award criteria). Deviations from the requirements of
competitive awards are prohibited “even where there is no evidence
of fraud or favoritism.” Hanisco v. Township of Warminster, 41 A.3d
116, 123 (Pa. Commw. Ct. 2012). These requirements are in place
“for the purpose of inviting competition, to guard against
favoritism, improvidence, extravagance, fraud and corruption.” Yohe
v. Lower Burrell, 208 A.2d 847, 850 (Pa. 1965) (internal quotations
omitted).
Agency action—like the decision to non-select United here—cannot be
arbitrary, capricious, or contrary to law. See, e.g., Cary v.
Bureau of Prof'l & Occupational Affairs, State Bd. of Med., 153
A.3d 1205, 1210 (Pa. Commw. Ct. 2017). An arbitrary-and-capricious
decision is one that, for example, is “unsupportable on any
rational basis because there is no evidence upon which the action
may be logically based.” Id. An agency must “examine relevant data
and articulate a satisfactory explanation for its action including
a rational connection between the facts found and the choice made.”
Id. (internal citations omitted).
3 Although the intent of the RFA is to award a grant, the
Pennsylvania Procurement Code nonetheless applies to competitive
solicitations for MCOs. Aetna Better Health of Pa. Inc. v. Dep't of
Human Servs., 2016 Pa. Commw. Unpub. LEXIS 1120, at *36-37 (Pa.
Commw. Ct. July 19, 2016).
OOR Exhibit 1 Page 017
CJ» DORSEY" always ahead
III. PROTEST GROUNDS
DHS’s decision to non-select United—and to proceed with
negotiations with other applicants in those regions—was contrary to
applicable law and arbitrary and capricious for several independent
reasons.
1. DHS Deviated from the RFA’s Terms a. Readiness Review
The RFA contemplated a rigorous “Readiness Review” process to vet
potential MCO awardees for “each HC Zone for which the [MCO] was
selected for negotiations.” (Ex. A. at III- 7.B; see also id. at
I-21.) During the Readiness Review, DHS “will assess a selected
[MCO’s] readiness to provide required services in compliance with
Agreement requirements.” DHS anticipated that this Readiness Review
would “will last approximately six (6) months.” (Id.) Failure to
complete the Readiness Review to DHS’s satisfaction would preclude
the MCO from obtaining an award. (Id.; see also id. II-6 (“If a
selected Applicant does not complete the Readiness Review to DHS’s
satisfaction for some or all of the Zones for which it was selected
for negotiations, DHS will not permit the Applicant to provide
program services to MA beneficiaries and will not proceed to the
operational phase of the Agreement with the Applicant for the
applicable Zones.”)).
But long after the RFA’s deadline for applications, DHS abruptly
changed course on the Readiness Review process—effectively
re-writing the RFA in the process to provide more time for
applicants who were unprepared or unable to conduct the Readiness
Review. During a routine meeting on May 6, 2020 between United and
DHS, the DHS staff disclosed that while there was “no news on the
RFA,” DHS was considering an attestation process to make the review
easier and faster for health plans already serving in Health
Choices. Then, DHS indicated that it was dropping the Readiness
Review altogether in favor of selected applicants submitting
self-attestations to their readiness to serve millions of
beneficiaries. This decision follows conceded concerns that some of
the selected applicants were unprepared to undertake their
Readiness Review. DHS officials have long complained about the
readiness of certain applicants to perform the HealthChoices award.
For example, on November 18, 2016, DHS’s Allen Fisher wrote in an
email message to David Evans that he had concerns about Geisinger’s
preparedness to begin work on time. (Exhibit E.)
It is evident that DHS intends to depart from the RFA’s terms given
the recent decision by DHS to extend incumbent contracts.
Specifically, in June 2020, just one business day before DHS
announced which applicants would enter the negotiation phase, DHS
required United to extend its existing awards until the earlier of
December 31, 2021 or until DHS completed
OOR Exhibit 1 Page 018
C]) DORSEY'" always ahead
July 8, 2020 Page 6 negotiations and awards under the RFA. DHS is
not free to re-write the RFA’s award process mid-stream—and there
cannot be a “competitive” process if DHS is putting its finger on
the scale of the competition by buying more time for unprepared
MCOs. See, e.g., Lagsday, 453 A.2d at 954; Hanisco, 41 A.3d at
123.
b. DHS Favored Vertically Integrated Insurer/Hospital Systems— a
Preference Not Articulated in the RFA’s Evaluation Criteria.
Part II of the RFA lists the criteria that DHS must use to evaluate
the Applications. The RFA contains no language that expresses a
requirement, much less a preference, for applications from
vertically-integrated systems of hospitals of insurers. Indeed, the
RFA does not state a preference for any particular business
structure. Per the terms of the RFA, 100% of the possible points
came from the Soundness of Approach, Personnel Qualifications and
Staffing, and Prior Experience and Performance categories. (Ex. A
at II-4.) And the only bonus points available were for Domestic
Workforce Utilization. (Ex. A at II-4.) Any award arising from
DHS’s deviation from the criteria in the RFA is arbitrary and
contrary to law. See, e.g., Hanisco, 41 at 123.
Such a deviation occurred here—DHS clearly, during the evaluation,
preferred vertically- integrated systems of hospitals and insurers.
Three of the four applicants selected for statewide negotiation are
vertically integrated hospital/insurer systems: UPMC, Geisinger,
and Health Partners. This preference was found nowhere in the RFA
documents and caused DHS to select these applicants to the
exclusion of other applicants.
This preference was so significant that it even overcame DHS’s
stated evaluation factors. For example, Geisinger and Health
Partners lack experience in the PH program outside of their
existing geographic footprint, as shown here:
OOR Exhibit 1 Page 019
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July 8, 2020 Page 7
See Statewide Managed Care Map, available at:
https://www.dhs.pa.gov/providers/
Providers/Pages/Statewide-Managed-Care-Map.aspx (last visited July
7, 2020). This map shows that Health Partners and Geisinger both
only have experience operating one Zone—a far cry from the
statewide operations they will be expected to undertake as a result
of this selection process. Prior Experience and Performance, which
counts for 10% of an applicant’s score, only has a few evaluation
factors, one of which is “experience in Medicaid managed care
systems, and in the operation of managed care medical programs”.
(Ex. A at II-4.) Given Geisinger and Health Partners’ lack of
experience, this crucial factor evidently was not weighted
appropriately. Applicants with low scores in the Prior Experience
and Performance category would have a mountain to climb to defeat
more experienced and higher-scoring applicants—indicating that this
category was not scored appropriately.
2. DHS Used Unstated Evaluation Criteria to Assess Proposals—and
Engaged in Improper Communications With Applicants
In making competitive awards, an agency cannot use unstated or
secret evaluation criteria. See D'Eramo, 37 A.3d at *28; see also
Lab. Corp. of Am. Holdings v. United States, 116 Fed. Cl. 643, 650
(Fed. Cl. 2014); 62 Pa.C.S. § 513(e). Indeed, a prior iteration of
this competition was cancelled and re-issued on July 21, 2016
following a court order enjoining execution of any agreement
related to that RFP because of concerns about DHS’s use of an
OOR Exhibit 1 Page 020
C]) DORSEY'" always ahead
July 8, 2020 Page 8 unstated criteria that it called “Heritage
Factor.” Aetna Better Health of Pa., Inc. v. Commonwealth, 186 A.3d
575, *9 (Pa. Commw. Ct. 2018).
Nor can an agency engage in improper communications with
applicants. See UnitedHealthcare of Pa., Inc. v. Dep't of Human
Servs., 186 A.3d 573, *35 (Pa. Commw. Ct. 2018) (Department had
improper contacts between DHS and an offeror’s executives after
bids were opened but before responsible offerors were determined);
see also Aetna, 186 A.3d at *37-38 (same). Separately, an agency
cannot share advantageous features from one applicant with another
applicant and ask the second applicant to revise its proposal. See
Am. Totalisator Co. v. Seligman, 34 Pa. Commw. Ct. 391, 429 (1978)
(quoting Louchheim v. Philadelphia, 218 Pa. 100 (1907)) (“Private
negotiations between [the agency] and a successful bidder through
which the terms and conditions of the competitive bids are modified
or changed, resulting either to the advantage or disadvantage of
the [agency], are not within the spirit and purpose” of a
competitive process); 62 Pa.C.S. § 513(f).
DHS appears to have violated these same principles again in
conjunction with the current award process. For example, DHS
informally revised the terms of the RFA after submissions. In its
RFA response, United proposed an innovative feature to cultivate
Accountable Communities of Health. (See, e.g., UnitedHealthcare of
Pennsylvania’s Proposal in Response to Request for Applications
07-19, Work Statement Questionnaire Responses to Member Management
Question 3 and Care Management Question 7.) DHS apparently liked
this offering in United’s application—so much it relabeled it as a
“regional council” and then shared it, post-bid, with other
applicants in the apparent hope that others would sweeten their
applications with something similar. But in June 2020—months after
the due date for applications had passed—the Secretary pushed for
MCO participation in a regional council. (Exhibit F.) This was
improper. See 62 Pa.C.S. § 513(f) (“In conducting discussions,
there shall be no disclosure of any information derived from
proposals submitted by competing offerors.”). Several weeks before
the award announcement or the contract extensions, the Secretary
and her staff joined a PAMCO meeting to state her expectations for
MCO community engagement. When asked for clarification, DHS noted
that the expectations would begin in 2021, i.e., during the period
of performance under the RFA. Shortly thereafter, in late June
2020, the Secretary and her staff summoned the CEOs of each MCO in
individual meetings to respond to DHS’s vision for “regional
councils.” DHS set the expectation that applicant “decision makers”
must attend these meetings and be prepared to make commitments to
the program. Shortly after Health Partners’ Plan’s meeting, and
prior to the award announcement, HPP staff emailed all MCOs
statewide noting that they would be convening a forum in response
to the Secretary’s vision on regional councils. And, one week
later, Health Partners’ Plans was selected to conduct negotiations
for a statewide contract. DHS effectively permitted Health
Partners’ Plans to change its proposal after the fact to
incorporate an idea in United’s proposal. Apart from the
OOR Exhibit 1 Page 021
C]) DORSEY'" always ahead
July 8, 2020 Page 9 DHS-initiated contact with an applicant during
a blackout period, DHS apparently sought to either re-write its own
RFA after the submittal of applications or sought to extract
additional post-application features from individual applicants
found nowhere in the RFA.
This was part of a clear pattern of improper communications. To
give another example: the Secretary of Human Services, in an
unsolicited email to the United CEO in November 2019, referenced an
article in Bloomberg about United’s work on housing for the
homeless, and expressed a wish for United to bring this model to
PA.
These DHS communications raise concerns about improper ex parte
contacts with individual applicants, reveal that there were two
yardsticks—one as articulated in the RFA, and another separate set
of criteria and features that DHS was using to evaluate applicant
proposals. And it is clear, given DHS’s decision to non-select
United for four regions, that the second set of criteria infected
DHS’s decision. These unstated evaluation criteria are plainly
improper, and DHS should sustain this protest and re-score
proposals consistent with the stated evaluation criteria. See
D'Eramo, 37 A.3d at *28; see also Lab. Corp. of Am. Holdings, 116
Fed. Cl. at 650.
3. Applicants Failed to Disclose—or DHS Failed to Adequately
Consider—Negative Information About Work Stoppages that Materially
Increases the Risks of Performance
Section III-7 of the RFA recognizes that the provisions of the
draft Agreement (Appendix A) will become part of DHS’s ultimate
agreement with a successful applicant. Sub-Section III-7(A)
states:
A. A description of the anticipated requirements for the provision
of Physical Health services to MA beneficiaries for the
HealthChoices Program is set forth in the draft Agreement (Appendix
A). The provision of this RFA and its Appendices will become a part
of the HealthChoices agreement.
(Ex. A at III-7(A)) (emphasis added).) In addition, in Section
III-8 the RFA makes clear that “The Applicant shall not request
changes to the other provisions of the RFA [other than in Exhibits
D or E of the draft agreement], nor shall the Applicant request to
completely substitute its own terms and conditions,” and “The
Department will reject any application that is conditioned on the
negotiation of the terms and conditions.” (Ex. A at III-8.)
In the draft agreement in Appendix A to the RFA, Section V’s
“Program Requirements” includes the following regarding the
applicant’s “Provider Network”:
The PH-MCO may not include in its network any Provider with a
history of one or more work stoppages during the five years
OOR Exhibit 1 Page 022
C]) DORSEY'" always ahead
July 8, 2020 Page 10
immediately preceding the Effective Date of this Agreement, unless
the Provider is or becomes a signatory to a valid collective
bargaining agreement or is or becomes a signatory to a labor peace
agreement with any labor organization that informs the Provider
that it is seeking to represent the Provider’s employees at any
site in the PH-MCO’s network that delivers services to
HealthChoices enrollees. Such agreement, which is intended to
prevent service disruptions to the PH-MCO’s members caused by
employee unrest or dissatisfaction, must contain (1) a provision
prohibiting the labor organization and its members, and in the case
of a collective bargaining agreement, all employees covered by the
agreement, from engaging in work stoppages, boycotts, or other
economic interference with the Provider’s provision of
HealthChoices services at the facility for the duration of the time
covered by this Agreement; and (2) the Procedures that the Provider
and labor organizations shall use to negotiate and resolve disputes
relating to employment conditions, including but not limited to a
requirement that all such unresolved disputes be submitted to final
binding arbitration.
(Ex. B § S (emphasis added).) DHS clarified, through its answers to
Additional Question No. 259, that “[a] work stoppage refers to the
temporary cessation of work as a form of protest and can be
initiated by either employees or company management.” (Ex. B
Question No. 259.)
At least one of the applicants had an impermissible work stoppage
in the relevant time period. See UPMC workers and patients protest
board meeting, Pittsburgh’s Action News 4 (May 28, 2019), available
at
https://www.wtae.com/article/upmc-workers-one-day-strike-protest-
board-meeting/27612682 (last visited July 5, 2020). With the
Effective Date of the anticipated agreements to occur on January 1,
2021, (see Ex. A at I-3), this work stoppage falls within “the five
years immediately preceding the Effective Date of this Agreement,”
(Ex. B § S.)
As a result, UPMC had to already be, or become, “a signatory to a
valid collective bargaining agreement” or “a signatory to a labor
peace agreement with any labor organization that informs the
Provider that it is seeking to represent the Provider’s employees
at any site in the PH-MCO’s network that delivers services to
HealthChoices enrollees.” (Ex. B § S.) UPMC does not currently have
any such agreement and, based on the tortured history of labor
negotiations with UPMC, it is unforeseeable that it will be able to
obtain any such agreement. See, e.g., In rift over UPMC hospital, a
union and mayor expose split views, Pittsburg Post-Gazette (Aug.
30, 2018), available at https://www.post-
gazette.com/business/career-workplace/2018/08/30/SEIU-Bill-Peduto-UPMC-
hospitals/stories/201808210128 (last visited July 8, 2020). DHS’s
failure to disqualify UPMC on
OOR Exhibit 1 Page 023
C]) DORSEY'" always ahead
July 8, 2020 Page 11 this basis, or to adequately consider and
reduce UPMC’s score as a result, was arbitrary, capricious,
contrary to law, and contrary to the terms of its own RFA.
Moreover, DHS’s conduct effectively imposed an improper basis for
the award of a state contract. DHS made billions of dollars
contingent on UPMC’s willingness to enter into an agreement, and in
an effort to force UPMC to do so, DHS selected UMPC’s application
for negotiations for all five HealthChoices Zones, making it clear
that DHS is focused on including UPMC as an awardee and forcing it
into a collective bargaining or similar agreement. The
collective-bargaining criteria, which applied to some but not all
applicants, appears to have been used to force UPMC into such an
agreement. Because a contract cannot be awarded for reasons outside
of the terms of the RFA, DHS’s decision to award the contract to
UPMC to force it into a collective-bargaining agreement was
improper. D'Eramo, 37 A.3d at *28.
4. DHS’s Failure to Engage in a Competitive Award Process May
Result in
Termination of Federal Funding.
States with managed care program through which Medical Assistance
beneficiaries receive health services receive federal reimbursement
if certain statutory compliance requirements are met. See 42 U.S.C.
§§ 1396a, 1396n. Failure to comply with these terms may result in
termination of federal reimbursement. See Bowen v. Massachusetts,
487 U.S. 879, 885 (1988).
States may apply for a waiver of these requirements, 42 U.S.C. §
1396n(b), which Pennsylvania did for the HealthChoices Program.
(Exhibit G.) As part of that waiver application, the State agreed
to select contractors using a competitive procurement process. (Ex.
G at 10.) CMS approved that application, presumably conditioned on
the representations in that application. But, as demonstrated
throughout this letter, DHS did not abide by the terms of the RFA
in a number of non-competitive ways. It thereby failed to use a
competitive award process.
DHS’s failure is a violation of the waiver application, rendering
the resulting approval of the waiver application illegitimate.
Because Pennsylvania has been operating under the assumption that
certain terms of §§ 1396a and 1396n are waived, any issue with the
waiver would likely make Pennsylvania noncompliant and would result
in termination of federal reimbursement. Bowen, 487 U.S. at 885. To
ensure that its federal funding is maintained, DHS should reissue
this RFA and engage in a truly competitive award process.
OOR Exhibit 1 Page 024
C]) DORSEY'" always ahead
IV. CONCLUSION
United values its long-standing relationship with the Commonwealth
of Pennsylvania. United submitted an application that best
addressed DHS’s RFA and the needs of Pennsylvania MA beneficiaries.
But this award process was beset by irregularities and
inconsistencies. DHS’s decision to non-select United for further
negotiations was, as a result, arbitrary and capricious. United
respectfully requests that DHS enter into negotiations with United
in each Zone. Failing that, DHS should reverse its selection
decision and reprocure its requirements on an expedited basis and
in a manner consistent with competitive principles. United looks
forward to DHS’s response and expects it to adhere to the mandatory
stay of performance pending resolution of this protest.
Cordially yours,
OOR Exhibit 1 Page 025
C]) DORSEY'" always ahead
TABLE OF CONTENTS Exhibits to UnitedHealthcare of Pennsylvania Bid
Protest Dated 7/8/20
Exhibit No. Title/Description
A Pennsylvania Department of Human Services Request for
Applications No. 07-19
B Excerpts from Appendices and Addenda to Request for Applications
No. 07-19
C July 1, 2020 Letter from Pennsylvania Department of Human
Services to
UnitedHealthcare of Pennsylvania
D Corrected July 1, 2020 Letter from Pennsylvania Department of
Human Services to UnitedHealthcare of Pennsylvania
E November 18, 2016 Emails Between David Evans and Allen
Fisher
F June 8, 2020 Email from Michele Messinger to Allison
Davenport
G Section 1915(b) Waiver Proposal for Pennsylvania MCO
Program
OOR Exhibit 1 Page 026
EXHIBIT A
Pennsylvania Department of Human Services Request for Applications
No. 07-19
OOR Exhibit 1 Page 027
i
Managed Care Organizations to Provide Physical Health Services in
the Commonwealth of Pennsylvania in the Five HealthChoices
Zones:
Southeast Zone, Southwest Zone, Lehigh-Capital Zone, Northwest
Zone, Northeast Zone
ISSUING OFFICE
Commonwealth of Pennsylvania Department of Human Services
Bureau of Procurement and Contract Management Room 824 Health and
Welfare Building
625 Forster Street Harrisburg, PA 17120
RFA NUMBER
ii
REQUEST FOR APPLICATIONS FOR HEALTHCHOICES PHYSICAL HEALTH SERVICES
IN ALL
ZONES COMMONWEALTH-WIDE
TABLE OF CONTENTS
CALENDAR OF EVENTS Page v Part I GENERAL INFORMATION 1 I-1 Purpose
1 I-2 Issuing Office 1 I-3 Overview of the Project 1 I-4 Type of
Agreement 4 I-5 Rejection of Applications 6 I-6 Incurring Costs 6
I-7 Pre-Application Conference 6 I-8 Questions and Answers 6 I-9
Addenda to the RFA 7 I-10 Response Date 7 I-11 Application
Requirements 7 I-12 Economy of Preparation 11 I-13 Alternate
Applications 11 I-14 Discussions for Clarification 11 I-15 Oral
Presentations 11 I-16 Prime Applicant Responsibilities 11 I-17
Application Contents 11 I-18 Best and Final Offers 12 I-19 News
Releases 13 I-20 Restriction of Contact 13 I-21 Issuing Office
Participation 13 I-22 Term of Agreement 14 I-23 Applicant’s
Representations and Authorizations 14 I-24 Notification of
Selection 15 I-25 Debriefing Conferences 15 I-26 RFA Protest
Procedure 16 I-27 Use of Electronic Versions of this RFA 16 I-28
Information Technology Policies 16
OOR Exhibit 1 Page 029
and Negotiations
iii
Part II CRITERIA FOR SELECTION 18 II-1 Mandatory Responsiveness
Requirements 18 II-2 Technical Nonconforming Applications 18 II-3
Evaluation 18 II-4 Evaluation Criteria 18
A. Technical 18 B. Domestic Workforce Utilization 19
II-5 Applicant Responsibility 20 II-6 Final Ranking and Award
20
PART III TECHNICAL SUBMITTAL 22 III-1 Nature and Scope of the
Project 22 III-2 Zone of Operation 22 III-3 Management Summary 22
III-4 Qualifications 22
A. Corporate Background 22 B. Corporate Experience 23 C. Personnel
24
III-5 Financial Capability 27 III-6 Work Statement Questionnaire 30
III-7 Requirements 41 III-8 Objections and Additions to Standard
Grant Terms and
Conditions 43
45
IV-1 Small Diverse Business Participation Packet 45 IV-2 SDB
Participation Goal 45 IV-3 Agreement Requirements – SDB
Participation 45
PART V CONTRACTOR PARTNERSHIP PROGRAM 49
V-1 General Information 49
V-2 Participation Requirements 49
V-3 RFA Requirements 49
V-4 Agreement Requirements 50
iv
APPENDICES
APPENDIX A Draft Healthchoices Agreement APPENDIX B Financial Data
APPENDIX C Federal Funding Accountability and Transparency Act
Sub-
Recipient Data Sheet APPENDIX D Application Cover Sheet APPENDIX E
Trade Secret Confidential Proprietary Information Notice
Form APPENDIX F Applicant’s Managed Care Experience and References
APPENDIX G Executive Staff and Key Administrative Personnel
Checklist APPENDIX H Ownership Structure and Related Information
APPENDIX I Domestic Workforce Utilization Certification APPENDIX J
Small Diverse Business Participation Summary Sheet APPENDIX K Small
Diverse Business (SDB) Participation Packet
SDB-1 Instructions for Completing the SDB Participation Submittal
and SDB Utilization Schedule SDB-2 Participation Submittal SDB-3
SDB Listing SDB-4 Letter of Commitment SDB-5 Guidance for
Documenting Good Faith Efforts to Meet the SDB Participation Goal
SDB-6 Good Faith Efforts Documentation to Support Waiver Request of
SDB Participation Goal
APPENDIX L Lobbying Certification and Disclosure of Lobbying
Activities APPENDIX M Quality and Performance Management
HEDIS®* & CAHPS®** Template APPENDIX N Model Form of Small
Diverse Business Subcontract
Agreement APPENDIX O Management Directive 205.34 Commonwealth
of
Pennsylvania Information Technology Acceptable Use Policy
* The Healthcare Effectiveness Data and Information Set (“HEDIS®”)
is a registered trademark of the National Committee for Quality
Assurance (“NCQA”).
** The Consumer Assessment of Healthcare Providers and Systems
(“CAHPS®”) is a registered trademark of the Agency for Healthcare
Research and Quality.
OOR Exhibit 1 Page 031
•
• • • •
•
CALENDAR OF EVENTS
The Commonwealth will make every effort to adhere to the following
schedule:
Activity Responsibility Date
Potential Applicants
Pre-Application Conference
Rachel Carson State Office Building - Auditorium 400 Market Street
Harrisburg, PA 17101
DHS/ Potential
Answers to Potential Applicant questions posted to the DGS website
http://www.emarketplace.state.pa.us/Search.aspx.
DHS November 19, 2019
Potential Applicants Ongoing
Sealed application must be received by the Issuing Office at:
Commonwealth of Pennsylvania Department of Human Services Bureau of
Procurement & Contract Management Room 824 Health and Welfare
Building 625 Forster Street Harrisburg, PA 17120
Applicants December 17, 2019 @ 12:00 PM EST
OOR Exhibit 1 Page 032
1
PART I
GENERAL INFORMATION
I-1. Purpose. This request for applications (“RFA”) provides to
those interested in submitting applications for the subject
procurement (“Applicants”) sufficient information to enable them to
prepare and submit applications for consideration by the Department
of Human Services (“Department” or “DHS”) on behalf of the
Commonwealth of Pennsylvania (“Commonwealth”) to satisfy a need for
Commonwealth licensed Health Maintenance Organizations (“HMOs”) to
operate as Managed Care Organizations (“MCOs”) in the HealthChoices
Physical Health (“PH”) Program in the five (5) HealthChoices Zones
(“Project”). This RFA contains instructions governing the requested
applications, including the requirements for the information and
material to be included; a description of the services to be
provided; requirements that Applicants must meet to be eligible for
consideration; general evaluation criteria; and other requirements
specific to this RFA.
I-2. Issuing Office. The DHS Office of Administration, Bureau of
Procurement and Contract Management (“Issuing Office”) has issued
this RFA on behalf of the Commonwealth. The sole point of contact
in the Commonwealth for Applicants for this RFA shall be Karen
Kern, RA-
[email protected], the Issuing Officer for this RFA.
Please refer all inquiries to the Issuing Officer.
I-3. Overview of the Project. The HealthChoices PH Program is the
Commonwealth’s statewide mandatory managed care program through
which the majority of Medical Assistance (“MA”) beneficiaries
receive their physical health services. The Department is issuing
this RFA to procure the services of MCOs to provide HealthChoices
PH Program services to MA beneficiaries in the five HealthChoices
Zones, which cover all 67 counties of the Commonwealth. In issuing
this RFA, the Department’s objectives are to improve the
HealthChoices Program and accomplish the following:
• Promote achievement of Triple Aim (better health, better care,
lower costs); • Provide high quality healthcare services to MA
beneficiaries; • Improve care coordination between physical and
behavioral health services; • Promote the expansion of value-based
purchasing of healthcare services; • Promote the expansion of
team-based approaches to care delivery (i.e. patient centered
medical homes); • Promote Community-based public health
initiatives; • Increase consumer access to needed services,
especially in rural and underserved areas of
the Commonwealth; • Increase consumer access to needed services,
including services to mitigate social
determinants of health; • Improve the efficiency of the
HealthChoices Program; and • Improve the provider experience with
the HealthChoices Program.
OOR Exhibit 1 Page 033
2
To achieve these goals, selected MCOs must be as flexible and
adaptable as possible, and demonstrate the ability to coordinate
services across multiple programs, including programs whose focus
is broader than the delivery of physical healthcare services.
Selected MCOs will be challenged to assist their members in new
ways to overcome personal barriers and ultimately to be
self-sufficient, informed purchasers of services.
As part of such new approaches to service coordination and
delivery, the Department may include additional populations to be
served or modify benefit packages to be delivered. In developing
the HealthChoices PH program, the Department will maintain its
focus on the provision of services that will achieve the objectives
listed in this section.
The HealthChoices PH Program is currently operational in all 67
counties that comprise five (5) geographic Zones. HealthChoices is
the sole program option for the majority of MA consumers residing
in these five Zones.
67 Counties in five (5) Zones
The HealthChoices PH Program operates statewide in the following
five (5) geographic Zones. Each Zone is considered one combined
service area, requiring that a selected PH-MCO be able to provide
the HealthChoices services required under this RFA and Agreement in
all counties of a Zone for which it has an Agreement.
A. The Southeast Zone (“SE”) includes Bucks, Chester, Delaware,
Montgomery, and Philadelphia Counties.
B. The Southwest Zone (“SW”) includes Allegheny, Armstrong, Beaver,
Bedford, Blair, Butler, Cambria, Fayette, Greene, Indiana,
Lawrence, Somerset, Washington, and Westmoreland Counties.
C. The Lehigh/Capital Zone (“L/C”) includes Adams, Berks,
Cumberland, Dauphin, Franklin, Fulton, Huntingdon, Lancaster,
Lebanon, Lehigh, Northampton, Perry, and York Counties.
D. The Northwest Zone (“NW”) (formerly New West) includes Cameron,
Clarion, Clearfield, Crawford, Elk, Erie, Forest, Jefferson,
McKean, Mercer, Potter, Venango, and Warren Counties.
E. The Northeast Zone (“NE”) (formerly New East) includes Bradford,
Carbon, Centre, Clinton, Columbia, Juniata, Lackawanna, Luzerne,
Lycoming, Mifflin, Monroe, Montour, Northumberland, Pike,
Schuylkill, Snyder, Sullivan, Susquehanna, Tioga, Union, Wayne, and
Wyoming Counties.
OOR Exhibit 1 Page 034
3
Population projections for the HealthChoices PH Program can be
uncertain and can be affected by changes in the economy, law and
regulations, and policies. The Department publishes monthly and
historical enrollment reports capturing many specific geographic
and statistical elements. These reports can be reviewed at
http://www.dhs.pa.gov/provider/healthcaremedicalassistance/managedcareinformation/i
ndex.htm.
Population – July 2019 Member Months
The groupings include Temporary Assistance Needy Families/Modified
Adjusted Gross Income (“TANF/MAGI”), Supplemental Security
Income/Breast and Cervical Cancer (“SSI/BCC”), and adults ages 19
to 64 newly eligible due to Medicaid expansion (“Newly Eligible”).
The TANF/MAGI includes all “Under Age 1” beneficiaries. The
Department anticipates that these populations may be relatively
stable in the future.
Zone TANF/MAGI SSI/BCC Newly Eligible Grand Total Southwest 233,707
80,557 148,780 463,044 Southeast 430,722 116,222 269,523 816,467
Lehigh/Capital 276,089 73,420 143,236 492,744 Northeast 169,614
46,432 100,704 316,750 Northwest 82,348 27,499 47,495 157,342 Grand
Total 1,192,480 344,130 709,738 2,246,348
Note: Some totals do not sum due to rounding.
Appendix B: Financial Data Appendix B includes average rates paid
to the MCOs for the CY 2018 Agreement Year in the groupings shown
above. Appendix B also includes information about the composition
and development of the 2020 rates.
Applicants are not required to submit an application for all Zones
but may apply for one, several or all Zones.
Certificate of Authority and County Operational Authority, Provider
Enrollment
Participation in the HealthChoices PH Program will be limited to
Commonwealth-licensed HMOs. All MCOs awarded an agreement for the
HealthChoices PH Program for any Zone will be required to have a
Certificate of Authority to operate as an HMO in Pennsylvania, as
well as Pennsylvania Department of Health (“DOH”) operating
authority in each county in each Zone for which they are selected.
A selected Applicant must obtain its Certificate of Authority and
operating authority for each county in the Zone(s) for which it has
been selected
OOR Exhibit 1 Page 035
4
no later than three (3) months prior to the date on which the
selected Applicant begins to provide services to program
beneficiaries (referred to as either the “Operational Date” or
“Effective Date” of the Agreement), currently anticipated to be
01/01/2021. Please note that the Effective Date is subject to
change. Selected Applicants must provide to the Department, through
the Managed Care Operations Chief, a copy of their Certificate of
Authority to operate as an HMO in Pennsylvania, as well as a copy
of the correspondence from the Pennsylvania DOH granting operating
authority in each county in the Zone(s) for which they were
selected.
As are all providers of MA services, selected Applicants must be MA
enrolled providers in the Pennsylvania MA Program or be eligible to
enroll and enroll in the MA Program as part of Readiness
Review.
Each employee, representative or agent of the Applicant who will
require access to Commonwealth Information Technology (“IT”)
resources to research or prepare the Technical Submittal, such as
access to the HealthChoices Extranet to view information referenced
in Appendix A draft HealthChoices Agreement, must be registered
with and approved by the Commonwealth to do so. To accomplish this,
one Applicant designated representative must complete and sign a
hard copy of the “Commonwealth IT Resource Acceptable Use Policy
User Agreement – Commonwealth Contractor or Consultant” form
located in Appendix O “Commonwealth IT Resource User Agreement”.
The completed form must be returned to Karen Kern, the Issuing
Officer at
[email protected]. After the Applicant is
registered and approved as an organization to be granted this
access, each individual who requires access will need to complete
an online registration process, including the completion of an
electronic version of the “Commonwealth IT Resource User
Agreement”. Detailed instructions for the completion of the User
Agreements and the registration process are set forth in Appendix
O.
I-4. Type of Agreement. If the Department enters into Agreements as
a result of this RFA, they will be full risk, capitated Agreements.
Regardless of the number of Zones that are awarded to an MCO, the
Department will have one (1) Agreement with the MCO that covers all
awarded Zones. Please see Appendix A for a draft Agreement.
As a result of this procurement, the Department anticipates
awarding the following numbers of MCOs in each Zone:
A. Southeast Zone: 4-5 MCOs B. Southwest Zone: 3-5 MCOs C.
Lehigh/Capital Zone: 3-5 MCOs D. Northwest Zone: 3-4 MCOs E.
Northeast Zone: 3-4 MCOs
In determining the number of MCOs to be awarded in each Zone, the
Department will consider the MA population of a Zone, the
Department’s experience with the HealthChoices PH Program, and the
ability of a Zone to support multiple MCOs.
OOR Exhibit 1 Page 036
5
The Department may enter into additional agreements with additional
qualified PH-MCOs in future years.
The Department will pay each selected PH-MCO using a schedule of
per member per month (“PMPM”) capitation rates. The Department may
make other types of payments, as provided in the final
Agreement.
Supporting information related to HealthChoices PH program costs
and rates is included in Appendix B, Financial Data. This historic
information does not necessarily predict the revenue that the
Department will provide in its final Agreements with the selected
MCOs.
Agreement pricing for the initial agreement year
This RFA does not require a cost proposal. The Department’s actuary
will provide a set of actuarially sound rate ranges for the initial
program rating period. The most recent Data Book prepared by the
Department’s actuary can be found on the Department’s website at
the following link:
http://www.dhs.pa.gov/provider/healthcaremedicalassistance/managedcareinformation/index.
htm
The Department’s actuary will, at a later date, prepare a Data Book
for the first Agreement year.
The Department will share the rate ranges and supporting
documentation with selected Applicants prior to negotiations over
financial terms.
The Department anticipates that the initial Agreements will
include:
• Capitation rates for two geographic rating areas within each of
the five HealthChoices Zones • Risk adjustment of capitation rates
(see section below) • Maternity care payments • High Cost Risk
Pools (not immediately applicable to a new entrant) • Home Nursing
Risk Sharing • Hepatitis C Quality Risk Pools • Under Age One Risk
Sharing • Specialty Drug Risk Sharing and Quality Risk Pools • Pay
for Performance incentives
The Department will determine a date by which Agreement
negotiations must be completed and Agreements must be signed by the
selected Applicants. If a selected Applicant does not accept the
Department’s final rate offer for a Zone, the Department may, in
its sole discretion, reject its application for all or some of the
Zones for which it was selected.
Agreement pricing for years subsequent to the initial year and
beyond:
OOR Exhibit 1 Page 037
6
For subsequent program years, the Department plans to provide each
selected PH-MCO with a financial proposal that includes a rate
offer with supporting documentation prior to the annual negotiation
of Agreement terms. The Department may change the process as needed
to accommodate changes in Centers for Medicare & Medicaid
Services (“CMS”) requirements and changes in the Department’s
objectives and practices.
Risk Adjustment
The Department anticipates that most capitation rates paid to the
PH-MCOs in the HealthChoices PH Program will be subject to risk
adjustment. Risk adjustment is a process where capitation payments
made to the PH-MCOs are adjusted based on the relative health risk
of each PH-MCO’s members. The Department has used risk adjustment
to adjust capitation payments in its HealthChoices program since
2003, and plans to continue this practice into the foreseeable
future.
The most recent version of the Risk Adjusted Rates (“RAR”) Manual,
HealthChoices Risk Adjusted Rates Manual – Version 2018 can be
found in Appendix B.
The RAR Manual provides in-depth documentation of the risk
adjustment process utilized in the HealthChoices program. The
attached RAR Manual reflects the current process. The Department
may make changes to the risk adjustment process that it determines
to be appropriate. The Department will provide comprehensive
documentation with timely updates to each selected PH-MCO on the
risk adjustment method.
I-5. Rejection of Applications. The Department may, in its sole and
complete discretion, reject any application received as a result of
this RFA.
I-6. Incurring Costs. The Department is not liable for any costs
the Applicant incurs in preparation and submission of its
application, in participating in the RFA and Readiness Review
processes or in anticipation of Agreement award.
I-7. Pre-Application Conference. The Department will hold a
Pre-Application conference as specified in the Calendar of Events.
The purpose of this conference is to provide an opportunity for
clarification of the RFA. Applicants should forward all questions
to the RFA Issuing Officer in accordance with Part I, Section I-8
to allow for adequate time for analysis before the Department
provides an answer. Applicants may also ask questions at the
conference. The Pre- Application conference is for information
only. Any answers furnished during the conference will not be
official until they have been verified, in writing, by the
Department. Attendance at the Pre-Application Conference is
optional, but strongly encouraged.
I-8. Questions & Answers. If an Applicant has any questions
regarding this RFA, the Applicant must submit the questions by
email (with the subject line “RFA #07-19 Question”) to the Issuing
Officer named in Part I, Section I-2 of the RFA. If the Applicant
has questions, they must be submitted via email no later than the
date indicated on the Calendar of Events. The Applicant shall not
attempt to contact the Issuing Officer by any other means. The
Department
OOR Exhibit 1 Page 038
7
will post the answers to the questions on the Department of General
Services (“DGS”) website by the date stated on the Calendar of
Events. An Applicant who submits a question after the deadline date
for receipt of questions indicated on the Calendar of Events
assumes the risk that its application will not be responsive or
competitive because the Commonwealth is not able to respond before
the application receipt date or in sufficient time for the
Applicant to prepare a responsive or competitive application. When
submitted after the deadline date for receipt of questions
indicated on the Calendar of Events, the Issuing Officer may
respond to questions of an administrative nature by directing the
questioning Applicant to specific provisions in the RFA. To the
extent that the Issuing Office decides to respond to a
non-administrative question after the deadline date for receipt of
questions indicated on the Calendar of Events, the answer will be
provided to all Applicants through an addendum.
I-9. Addenda to the RFA. If the Department deems it necessary to
revise any part of this RFA before the application response date,
the Issuing Office will post an addendum to the DGS website at
http://www.emarketplace.state.pa.us/Search.aspx. It is the
Applicant’s responsibility to periodically check the website for
any new information or addenda to the RFA. The Department will post
answers to the questions asked during the Questions & Answers
period to the website as an addendum to the RFA. The Department
shall not be bound by any verbal information nor shall it be bound
by any written information that is not either contained within the
RFA or formally issued as an addendum.
I-10. Response Date. To be considered for selection, hard copies of
applications must arrive at the Issuing Office on or before the
time and date specified in the RFA Calendar of Events. The
Department will not accept applications via email or facsimile
transmission. Applicants who send applications by mail or other
delivery service should allow sufficient delivery time for the
timely receipt of their applications. If, due to inclement weather,
natural disaster, or any other cause, the Commonwealth office
location to which applications are to be returned is closed on the
application response date, the deadline for submission will be
automatically extended until the next Commonwealth business day on
which the office is open, unless the Department otherwise notifies
Applicants. The hour for submission of applications shall remain
the same. The Department will reject unopened, any late
applications.
I-11. Application Requirements.
A. Application Submission. To be considered, Applicants should
submit a complete response to this RFA to the Issuing Office, using
the format provided in Part I, Section I- 11.B providing ten (10)
paper copies of the Technical Submittal; two (2) paper copies of
the Small Diverse Business (“SDB”) Participation Submittal for each
Zone for which an application is being submitted (and which must
include either the SDB Utilization Schedule (Form SDB-3), the Good
Faith Efforts Documentation to Support Waiver Request (Form SDB-6)
or both); and two (2) paper copies of the Contractor Partnership
Program (“CPP”) Submittal (See Part V). In addition to the paper
copies of the application, Applicants shall submit ten (10)
complete and exact electronic copies of the Technical Submittal in
the exact format provided in Part I, Section I-11.B, on Flash drive
in Microsoft Office or Microsoft Office-compatible format and two
(2) complete and exact electronic copies of the entire
OOR Exhibit 1 Page 039
8
application (Technical, SDB, and CPP Submittals, along with all
supporting documentation) on Flash drive in Microsoft Office or
Microsoft Office-compatible format. Additionally, on the Flash
Drive, include a separate folder that contains a complete and exact
copy of the entire Technical Submittal, excluding financial
capability information, in a searchable PDF (portable document
format). The electronic copies must be a mirror image of the paper
copy and any spreadsheets must be in Microsoft Excel. To the extent
that an Applicant designates information as confidential or
proprietary or trade secret protected in accordance with Part I,
Section I-17, the Applicant must also include one (1) redacted
version of the Technical Submittal, also excluding financial
capability on Flash Drive in Microsoft Office or Microsoft
Office-compatible format. Applicants may not lock or protect any
cells or tabs. The Flash drives must clearly identify the Applicant
and include the name and version number of the virus scanning
software that was used to scan the Flash drives before they were
submitted.
Applicants should not include any cost information in the technical
submittal. The Applicant shall make no other distribution of its
application to any other Applicant or Commonwealth official or
Commonwealth consultant. Each application page should be numbered
for ease of reference. An official authorized to bind the Applicant
to its provisions must sign the application. If the official signs
the Application Cover Sheet (Appendix D to this RFA) and the
Application Cover Sheet is attached to the Applicant’s application,
the requirement will be met. For this RFA, the application must
remain valid for 120 days or until Agreements are fully executed.
If the Department selects the Applicant’s application for award,
the contents of the selected Applicant’s application will become,
except to the extent the contents are changed through negotiations,
Agreement obligations.
Each Applicant submitting an application specifically waives any
right to withdraw or modify it, except that the Applicant may
withdraw its application by written notice received at the Issuing
Office’s address for application delivery prior to the exact hour
and date specified for application receipt. An Applicant or its
authorized representative may withdraw its application in person
prior to the exact hour and date set for application receipt,
provided the withdrawing person provides appropriate identification
and signs a receipt for the application. An Applicant may modify
its submitted application prior to the exact hour and date set for
application receipt only by submitting a new sealed application or
sealed modification which complies with the RFA requirements.
B. Application Format. Applicants must submit their applications in
the format, including heading descriptions, outlined below. To be
considered, the application must respond to all application
requirements. Applicants should provide any other information
thought to be relevant, but not applicable as an appendix to the
application.
Applicants may submit one application for multiple Zones; however,
if an Applicant is submitting for multiple Zones, any and all
portions of the Technical and CPP Submittals that describe
different, separate, or additional components specifically designed
to address the
OOR Exhibit 1 Page 040
9
RFA requirements in one particular Zone must be provided under
separate tabs of the Applicant’s response for a particular section
or question, and clearly labeled as “Section or Question [insert
number and name of relevant section or question] HealthChoices
[zone name] Zone” and Section or Question [insert number and name
of relevant section or question] HealthChoices [zone name] Zone,”
respectively. For example, Applicants will note in Part III, under
“Personnel”, the Department is specifically requesting that any
such different, separate, or additional organizational structure(s)
or personnel be provided under separately tabbed sections of the
Applicant’s application, and clearly labeled as “Part III , Section
III-4.C HealthChoices [zone name] Personnel,” and Part III, Section
III-4.C HealthChoices [zone name] Personnel,” respectively. If
submitting for multiple Zones, Applicants must include separate SDB
Submittals for each Zone in its application.
Each application shall consist of the following three (3)
separately sealed submittals:
1. Technical Submittal:
a. In response to Part III, Sections III-1 through III-8; The
Technical Submittal must include a Transmittal Letter and include
Tabs 1 through 10. Applicants must format their technical responses
as follows:
o Tab 1: Table of Contents o Tab 2: Zone(s) of Operations o Tab 3:
Management Summary o Tab 4: Prior Experience o Tab 5: Personnel o
Tab 6: Work Statement Questionnaire o Tab 7: Financial Capability o
Tab 8: Requirements o Tab 9: Objections to the Standard Terms and
Conditions o Tab 10: Applicant’s Managed Care Experience and
References (Appendix F)
b. Complete, sign and include Appendix I – Domestic Workforce
Utilization Certification;
c. Complete, sign and include Appendix L, Lobbying Certification
and if applicable, the Disclosure of Lobbying Activities form;
and
d. Complete and include Appendix C – Federal Funding Accountability
and Transparency Act Sub-Recipient Data Sheet.
2. SDB Participation Submittal (which must include Appendix J -
Small Diverse Business Participation Summary Sheet, the SDB
Utilization Schedule (Form SDB-3), Good
OOR Exhibit 1 Page 041
10
Faith Efforts Documentation to Support Waiver Request (Form SDB-6)
or both), in response to RFA Part IV; and
3. CPP Submittal, in response to Part V.
The Department may request additional information which, in the
Department’s opinion, is necessary to determine whether the
Applicant’s competence, number of qualified employees, business
organization, and financial resources are adequate to perform
according to the RFA and the Agreement. The Department will
initiate requests for additional information at any stage of the
evaluation and selection process prior to the award of an
agreement.
The Department may make investigations as it deems necessary to
determine the ability of the Applicant to perform as a
HealthChoices PH-MCO, including investigations to determine an
Applicant’s ability to provide services in multiple Zones if
selected for negotiations. The Applicant shall furnish to the
Department all