FOIL Requests for Fiscal Intermediary Applications

Over the last several days, many providers received letters from the Records Access Officer for the New York Department of Health, notifying them that a request has been submitted to the DOH for “all offers submitted in response to RFO #20039.” Every letter is identical, therefore, to the extent a provider has not yet received this letter, they will.  We have received many questions about this letter and, in this alert, we explain what this letter means and how providers should proceed.

In essence, the Freedom of Information Law (“FOIL”) allows individuals to request documents and information from the government that relates to the operation or work of government agencies. Thus, individuals will frequently submit FOIL requests to federal and state government agencies, to obtain documentation or information that has been generated by the government in the course of performing its work. Here, one or more parties has requested from the DOH information regarding the RFO. Specifically, they have requested to receive all offers that were submitted to the DOH in response to the RFO.  The identity of the requesting party is unknown, but it is assumed that the request was made by a non-winning fiscal intermediary that is interested in obtaining this information in order to evaluate and potentially bring a claim against the State regarding the RFO results.

Unless an exception to disclosure under FOIL applies, the government is required to provide the information requested.  One of the exceptions to the requirement to disclose FOILed information applies to documents or information that is proprietary, that is a trade secret or that, if disclosed, would cause “injury to the competitive position of a business.”  In other words, if a provider has submitted any information in their RFO application that is a trade secret, or that could be helpful to a competitor fiscal intermediary, then such information will not be disclosed by the DOH to the party who requested “all offers.” Because some of the RFO application information may be protected from disclosure, the DOH has now reached out to all providers, to give them an opportunity to specify what information, in if any, in the provider’s RFO application itself is confidential, proprietary, or otherwise can be withheld from disclosure under FOIL. The RFO applicants will have 10 days to respond to the DOH Records Officer and, if they fail to do so, the full application, without any redacted material, will be disclosed.

Applicants who have proprietary and confidential information in their applications should take time to review the application and specify to the FOIL Records Officer which, if any, sections of the RFO application should be withheld from disclosure to the public.  Applicants that are LHCSAs and who may be considering utilizing the same or similar application sections of the RFO for their LHCSA RFO application also have a strong interest in not having their application disclosed, because it could provide a competitive advantage to another LHCSA that will be applying for the LHCSA RFO.

Please let us know if we can help in this process. Our attorneys regularly handle FOIL matters.