It’s hard to make a case without all the facts.
Which is why the two health insurance companies denied a piece of the state’s $15.5 billion, five-year Medicaid contract want more information about what they allege was an unfair bid process. But the public records requests submitted by Blue Cross Blue Shield of Rhode Island and Tufts Public Health Plans Inc. weren’t fulfilled before the deadline by which the companies had to appeal the contract decision.
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“It’s a riddle wrapped in an enigma that speaks to the problems with bureaucracy,” said John Marion, executive director for Common Cause Rhode Island.
It also speaks to longstanding frustrations with the state’s public records law, which advocates, including Marion, have tried unsuccessfully to update and strengthen for years.
In this case, the problem is one of conflicting deadlines. The Rhode Island Access to Public Records law gives public agencies 10 days to answer a records request, with an option for a 20-day extension for “good cause,” — a caveat “made of swiss cheese,” Marion said. But state procurement law gives bidders two calendar weeks to file a written protest of a tentative contract, forcing Blue Cross and Tufts to file their appeals before they could receive the requested information detailing how the state reviewed and decided on the contract winners.
“The public records are critical to fully understanding the procurement process used by the R.I. Executive Office of Health and Human Services and R.I. Division of Purchases, and the procurement decisions made,” Christopher Whitney, an attorney representing Blue Cross, wrote in the company’s July 29 appeal letter to Jonathan Womer, state administration director.
Urcel Fields, president of government markets for Point32Health, Tufts’ parent company, also referenced a records request in the company’s separate July 29 appeal letter.
Since the state announced its tentative contract selection on July 16, partially redacted bids from all four vendors were unsealed, alongside a 28-page memo explaining the state’s contract decision.
Bidders were required to score 85 points out of a possible 100 on their technical proposals; Blue Cross scored 63.22 points and Tufts scored 54.38 points, disqualifying them from consideration, according to the memo. The two winning bidders, Neighborhood Health Plan of Rhode Island and UnitedHealthcare of New England, Inc, both exceeded the required technical score minimum, with final scores of 90.53 and 88.71 respectively.
UnitedHealthcare and Neighborhood, along with Tufts, have been managing Medicaid services under the existing state contract awarded in 2016.
What additional information Blue Cross and Tufts wanted was not immediately available, requiring a separate public records request to obtain. Rhode Island Current filed that request on Monday.
Also not clear is whether the records request had been filled since the July 29 appeals were written. Rich Salit, a spokesperson for Blue Cross, declined to comment on Monday.
A spokesperson for Tufts did not respond to inquiries for comment about the pending appeals.
The complaints themselves are “currently under review,” Karen Greco, a spokesperson for R.I. Department of Administration, said in an email.
“We are taking all aspects of the complaint into consideration,” Greco said. “When completed, we will issue a written determination.”
She did not answer follow-up questions regarding when a decision is expected.
But the companies, and the public, deserve to know the full story, said Steven Brown, executive director for the American Civil Liberties Union of Rhode Island.
“Once a bid has been completed, the information should generally be available to everyone,” Brown said. “There might be some limited arguments for specific, proprietary information, but otherwise the public ought to be able to see exactly what led to the decision.”
Especially given the size and impact of the massive contract, which comprises 25% of the state’s annual budget and affects one-third of state residents covered under the government insurance program.
“We’ve got to get this right,” Sen. Lou DiPalma, a Middletown Democrat and chairman of the Senate Finance Committee, said. “We’re talking about the lives of over 300,000 people.”
In fiscal 2022, the most recent data available, Neighborhood was responsible for more than half of the state’s Medicaid patients, while UnitedHealthcare had 30% and Tufts had 5%. The remaining 6% was paid directly to providers through a fee-for-service model, rather than through the managed care organizations.
The 15,000 Medicaid patients covered through a Tufts Health plan would have to transfer to one of the awarded vendors if the contract goes through.
DiPalma, who has sponsored public records reform legislation for several years, said it was unfair to require companies to file appeals on state contracts without putting the same timeline on public agencies to fill records requests relevant to the appeal.
“We can’t have our cake and eat it too,” he said.
DiPalma did not want to speculate on Blue Cross’ and Tufts’ allegations that the bidding process was unfair.
But, he acknowledged, it was “interesting” that Blue Cross, a leading state health insurer, was disqualified from the selection process given its size and experience.
Whitney made the same argument in the company’s appeal letter, blasting the bid process as “fatally flawed,” and describing the scoring process as “arbitrary and illogical.”
Whitney also accused UnitedHealthcare and Neighborhood of deliberately omitting or failing to complete information in their respective submissions, which should have led them to score lower than they did, he said.
“The arbitrary manner in which the TEC applied the scoring rubric calls into question the validity of the scores assigned to every bidder,” Whitney wrote. “Given the clear errors in, and arbitrary nature of, the technical scoring, the contract award cannot stand.”
Fields also criticized the scoring process in the letter on behalf of Tufts, noting it “did not treat applications the same” and “accepted information at face value without scrutinizing or examining the significance of that information.”
Field singled out Neighborhood for failing to include written proof of an agreement with Lifespan Corp., which as the state’s largest hospital provider plays a significant role in treating Medicaid patients.
“Critically, had EOHHS properly graded NHPRI to reflect the lack of Lifespan in the network, it likely would have had to reprocure the entire Solicitation,” Fields wrote.
Whitney also targeted the makeup of the five-member scoring team, all of whom work for the Rhode Island Executive Office of Health and Human Services (EOHHS). State procurement rules require at least one representative from the purchasing department on the review team.
Whitney alleged a conflict of interest by an unnamed member of the review team, who previously worked for one of the winning bid companies within the last two years.
Blue Cross asked the state to revise its contract to include an award to the company, or else scratch the existing award and start the bidding process over. Tufts asked only for a do-over, noting that the state could extend its existing contract with Medicaid providers if a new award cannot be made by the July 1, 2025 start date.
The new contract is set to run through June 30, 2030, with the option for a five-year renewal.
Peter Marino, CEO and president of Neighborhood, acknowledged the appeals filed by Blue Cross and Tufts, but did not comment on the allegations.
“Neighborhood remains honored to be selected to serve the State of Rhode Island and to continue our effective partnership with the Executive Office of Health and Human Services (EOHHS) as a health plan participant in its Medicaid Managed Care Program,” Marino said in an emailed statement on Monday.
“With more than one in five Rhode Islanders enrolled in a Neighborhood plan, we remain committed to building more efficient ways for our provider network to do business with us and serve our members through more accessible, cost-effective, and equitable healthcare.”
Theresa Hunter, a spokesperson for UnitedHealthcare, also backed the existing contract award.
“While we understand that some non-awardees may be disappointed with the outcome, we remain confident in the fairness and integrity of the selection process,” Hunter said in an email on Monday. “We look forward to continuing to serve our Medicaid members in the great state of Rhode Island.”
Nancy Lavin is a staff writer for the Rhode Island Current.
