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.
{¶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.
{¶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.
{¶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...