Parmount Advantage v. Ohio Dep't of Medicaid

Decision Date14 October 2021
Docket Number2021-00262PQ
PartiesPARAMOUNT ADVANTAGE Requester v. OHIO DEPARTMENT OF MEDICAID Respondent
CourtOhio Court of Claims
Sent to S.C. Reporter 11/29/21
REPORT AND RECOMMENDATION

{¶1} This action is filed under R.C. 2743.75, which provides an expeditious and economical procedure to enforce the Ohio Public Records Act, R.C. 149.43. On April 12, 2021, requester Paramount Advantage, an unsuccessful applicant in a managed care organization procurement process, made a public records request to respondent Ohio Department of Medicaid (ODM) to inspect and copy public records [in any format] that fall into any of the following categories:

1. Documents reflecting the scoring performed by the Ohio Department of Medicaid ("ODM"), as to all Plan Applicants, including but not limited to: (a) who performed the scoring; (b) the score cards; (c) score tabulations; (d) the process(es) applied to scoring; (e) assumptions made in scoring; (f) considerations taken in scoring; and (g) all other matters related to the managed care procurement scoring process of applications (the "Plan Applications") that ultimately resulted in the Managed Care Procurement Award announced on April 9, 2021 (the "Procurement Process/Decision") related to RFA ODMMR-2021-2024 (the "RFA");
2. All Plan Applications received by ODM by all Applicants;
3. All recordings, video and/or audio, of oral presentations by all Plan Applicants;
4. Documents reflecting all ODM participants in oral presentations by Plan Applicants, including those participating in listen or observing mode and a list of those who scored the video portion of the process 5. Documents reflecting ODM internal communications between/among Plan Application reviewers/scorers;
6. Documents reflecting instructions to potential applicants outlining the RFA process as well as any follow-up questions from and responses to potential applicants related to the RFA process;
7. Documents reflecting the decision to not award any contracts to an application for only one or two regions;
8. Documents reflecting communications between the ODM and United Healthcare Community Plan of Ohio, Inc. related to the Procurement Process/Decision;
9. Documents reflecting communications between ODM and Humana Health Plan of Ohio, Inc. related to the Procurement Process/Decision;
10. Documents reflecting communications between ODM and Molina Healthcare of Ohio, Inc. related to the Procurement Process/Decision;
11. Documents reflecting communications between ODM and AmeriHealth Caritas Ohio, Inc. related to the Procurement Process/Decision;
12. Documents reflecting communications between ODM and Anthem Blue Cross and Blue Shield related to the Procurement Process/Decision;
13. Documents reflecting communications between ODM and CareSource Ohio, Inc. related to the Procurement Process/Decision;
14. Documents reflecting communications between ODM and Buckeye Community Health Plan related to the Procurement Process/Decision;
15. Documents reflecting communications between ODM and Aetna Better Health of Ohio related to the Procurement Process/Decision;
16. Documents reflecting communications between ODM and Medical Mutual of Ohio related to the Procurement Process/Decision 17. Documents reflecting communications between ODM and Ohio Employee Health Partnership related to the Procurement Process/Decision; and
18. Documents reflecting communications between ODM and any person or entity who/that was not an Applicant related to the Procurement Process/Decision.

(Complaint, Exh. B.) The same day, ODM responded that it was in receipt of and working to fulfill the requests (Id., Exh. C.) On April 14, 2021, ODM sent a written response to each request and attached responsive records. (Id., Exh. D.) On April 15 and 20, 2021, ODM produced additional responsive documents. (Id., Exh E, F.) In a letter dated April 19, 2021, Paramount made a second public records request for:

1. All Records (as defined in R.C. 149.43) related to a problem in the enrollment of Medicaid members into the Paramount Advantage plan as reflected in the data shared in the Paramount/ODM Data Meeting presentation dated August 29 2019, and attached hereto as an Exhibit;
2. All Records related to problems with the enrollment of Medicaid members into the Paramount Advantage plan including but not limited to problems regarding (a) deceased members being retroactively enrolled, (b) ABD members being placed in incorrect rate cells, (c) MyCare members assigned to Paramount Advantage, and (d) extension members being moved to CFC;
3. All Records related to a problem with the algorithm that assigned Medicaid members among the managed care plans resulting in a disproportionately large population of high cost, high risk members enrolled in Paramount Advantage;
4. All Records related to the reimbursement to Paramount Advantage by ODM of approximately $57 million in connection with the enrollment or algorithm issues referenced in Requests 1, 2, and 3;
5. All Records reflecting communications between ODM and Aetna Better Health related to the enrollment, algorithm, or payment issues referenced in Requests 1, 2, 3, and 4;
6. All Records reflecting communications between ODM and Buckeye Community Health Plan related to the enrollment algorithm, or payment issues referenced in Requests 1, 2, 3, and 4; 7. All Records reflecting communications between ODM and Caresource related to the enrollment, algorithm, or payment issues referenced in Requests 1, 2, 3, and 4;
8. All Records reflecting communications between ODM and Molina Healthcare of Ohio related to the enrollment, algorithm, or payment issues referenced in Requests 1, 2, 3, and 4;
9. All Records reflecting communications between ODM and United Healthcare Community Plan of Ohio, Inc. related to the enrollment, algorithm, or payment issues referenced in Requests 1, 2, 3, and 4;
10. All Records reflecting communications between ODM and Accenture related to the enrollment, algorithm, or payment issues referenced in Requests 1, 2, 3, and 4;
11. All Records reflecting communications between ODM and Milliman related to the enrollment, algorithm, or payment issues referenced in Requests 1, 2, 3, and 4;
12. All Records reflecting communications between ODM and any outside consultant or advisor related to the enrollment, algorithm, or payment issues referenced in Requests 1, 2, 3, and 4; and
13. All Records related to any disciplinary or threatened disciplinary actions against any ODM employee in connection with the enrollment, algorithm, and payments issues referenced in Requests 1, 2, 3, and 4.

(Id., Exh. H.) On April 23 and May 4, 2021, ODM sent an email and letter acknowledging receipt of the second request. (Id., Exh. I, J.)

{¶2} On May 7, 2021, Paramount filed a complaint pursuant to R.C. 2743.75 alleging that ODM had denied access to public records in violation of R.C. 149.43(B). The case was referred to mediation. On June 28, 2021, the special master denied the motion of UnitedHealthcare Community Plan of Ohio, Inc. to intervene. On July 13, 2021, the mediator entered an order reporting that

as a result of mediation, the requests set forth in the letter of April 12, 2021, attached to the complaint numbered 1 (scoring notes only), 5, and 8 through 18 remain unresolved: all other matters have been resolved or are otherwise not disputed.

On July 29, 2021, ODM filed a combined response to the complaint and motion to dismiss (Response). On August 26, 2021, Paramount filed a reply.

Burden of Proof

{¶3} The Ohio Public Records Act, R.C. 149.43, is construed liberally in favor of broad access, with any doubt resolved in favor of disclosure of public records. State ex rel. Rogers v. Dept. of Rehab. & Corr ., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 6. The requester in an enforcement action under R.C. 2743.75 bears an overall burden to establish a public records violation by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). The requester bears a burden of production "to plead and prove facts showing that the requester sought an identifiable public record pursuant to R.C. 149.43(B)(1) and that the public office or records custodian did not make the record available." Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 33.

Motion to Dismiss

{¶4} In order to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt that the claimant can prove no set of facts warranting relief after all factual allegations of the complaint are presumed true and all reasonable inferences are made in claimant's favor. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set of facts consistent with the complaint that would allow the claimant to recover, dismissal for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10.

Remaining Claims

{¶5} The parties agree that among the requests of April 12, 2021, only Request Nos. 1 (scoring notes only), 5, and 8 through 18 remain unresolved. The special master accordingly finds that Paramount's claims for production of records based on Request Nos. 1 (other than scoring notes), 2-4, and 6-7 are moot.

Analysis

{¶6} ODM asserts that the remaining portion of Request No. 1 has been satisfied by production of the scoring notes to Paramount in collateral litigation. ODM further asserts that all requests set forth in the letter of April 19, 2021, have been satisfied. (Response at 3.) Paramount denies both of these assertions.

{¶7} ODM further argues that all of...

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