AHF Lawsuit Against Florida Governor Rick Scott

Filing # 75548244 E-Filed 07/26/2018 12:02:53 PM

IN THE JUDICIAL COURT, SECOND JUDICIAL CIRCUIT, IN AN FOR LEON COUNTY, FLORIDA

AHF MCO OF FLORIDA, INC. d/b/a PHC FLORIDA HIV/AIDS SPECIALTY PLAN

Petitioner,
vs. CASE NO: EXECUTIVE OFFICE OF THE GOVERNOR

Respondent. _______________________________________/

PETITION FOR WRIT OF MANDAMUS, AND COMPLAINT DECLARATORY RELIEF

COMES NOW Petitioner, AHF MCO of Florida, Inc. d/b/a PHC Florida HIV/AIDS Specialty Plan (“PHC”), pursuant to Art. I, § 24, Fla. Const.; §119.07, et seq., Fla. Stat.; and Fla. R. Civ. P. 1.630, sues Respondent, Executive Office of the Governor (“EOG”) in this Petition for a Writ of Mandamus and Complaint for Declaratory Relief pursuant to § 86.011, .021, Fla. Stat., for relief, and as grounds therefore alleges:

Jurisdictional Allegations

1. Petitioner, PHC, is a nationally accredited managed care plan and is the current contractor for HIV/AIDS Specialty Plans for Regions 10 and 11 in Florida under the Florida’s Statewide Medicaid Managed Care program (the “SMMC”). PHC is a not-for-profit health plan providing comprehensive medical care to thousands of enrollees with HIV/AIDS in Miami-Dade and Broward Counties, the epicenter of the HIV epidemic in Florida.

2. Respondent EOG is an agency subject to The Florida Public Records Law, Chapter 119, Florida Statutes and maintains public records defined therein. Section 119.011(12), Fla. Stat. defines “public records” to include: all documents, papers, letters, maps, books, tapes,

photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. See Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980); see also Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979); Art. I, § 24, Fla. Const.

3. The fact that the records are part of a preliminary process does not remove them from the definition of “public record.” When material falls within the statutory definition of “public record” in § 119.011(12), Fla. Stat., and has been prepared to “perpetuate, communicate or formalize knowledge, the record is subject to disclosure even if the agency believes that release of the non-final product could be detrimental. See, e.g., Gannett Corporation, Inc. v. Goldtrap, 302 So. 2d 174 (Fla. 2d DCA 1974) (county’s concern that premature disclosure of a report could be harmful to the county does not make the document confidential); cf. Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010).

4. This Court has jurisdiction and venue is appropriate in Leon County because Respondent EOG maintains its offices in Leon County and by Florida Statute can be sued in Leon County.

5. This is an action for a Declaratory Judgment and for Writ of Mandamus.

6. This Court has jurisdiction over the relief requested by PHC pursuant to Chapter 119, Florida Statutes.

General Allegations

7. EOG has failed to provide Petitioner access to public records as required by Chapter 119, Florida Statutes. Public records are defined to include:

“…all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other

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material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” § 119.011(12), Fla. Stat. (2013).

Background

8. PHC has been a contracted Specialty Health Plan with the State of Florida through the Agency for Health Care Administration (“AHCA” or the “Agency”)) since 2013. AHCA’s contract with PHC and other managed care providers expires at the end of 2018.

9. On July 14, 2017, AHCA issued a solicitation seeking vendors to provide SMMC services for a new five year period starting in 2019 (AHCA ITN 011-17/18). The SMMC program is divided into eleven regions. All of the solicitations contemplated multiple contract awards including awards for comprehensive plans, long term care plans, managed medical assistance plans, and certain specialty plans including the HIV/AIDS Specialty Plan. PHC submitted a timely and complete proposal to continue serving as an HIV/AIDS Specialty Plan for Regions 10 and 11 (i.e., Miami-Dade and Broward Counties).

10. Florida suffers from the third highest rate of HIV cases among the 50 states at 24 cases per 100,0001 with the Miami and Ft. Lauderdale areas being the worst areas in the nation for HIV cases.2 According to Florida’s Department of Health, there are over 135,000 Floridians living with HIV. And the epidemic continues to get worse as state officials have turned away federal funding for prevention and care, limited sex education, and generally downplayed the problem.3

11. Despite the critical state of the HIV/AIDS epidemic in South Florida, PHC was not selected to negotiate a new SMMC contract for the upcoming contract period. PHC is

1

http://www.cdc.gov/hiv/topics/surveillance/resources/reports/index.htm.

2 Id. at Table 28 (HIV data for metropolitan statistical area).
3 http://www.sciencemag.org/news/2018/06/we-re-mess-why-florida-struggling-unusually-severe-hivaids-problem

HIV Surveillance Report 2016, Vol. 28, Table 24 (HIV Data for all 50 states)

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protesting this decision pursuant to Florida’s procurement laws and has an initial hearing on this matter before the Department of Administrative Hearings scheduled for August 7, 2018. The decision to eliminate PHC as an HIV/AIDS Specialty Plan in the epicenter of the state’s epidemic threatens to disrupt the care of thousands of people living with HIV/AIDS at a time when Florida continues to pull back on other resources devoted to combatting this problem. Thus, time is of the essence for these records to be produced by EOG to PHC.

12. In order to vindicate its rights under Florida law, PHC is seeking certain public records clearly available under the Act. On July 19, 2018, PHC submitted a request for public records to EOG seeking records showing meetings and travel plans involving Governor Scott for the period July 20, 2018 through October 31, 2018.

PUBLIC RECORDS REQUEST

13. On or about July 19, 2018, PHC requested certain public records from EOG. See PHC’s Public Records Request, attached as Exhibit A. The Public Records Request asked specifically for:

1. A copy of Governor Scott’s electronic calendar showing all meetings, events, and appearances involving the Governor for the period July 20, 2018 through October 31, 2018;
2. A copy of any hardcopy calendars or other documents showing all meetings, events, and appearances involving the Governor for the period July 20, 2018 through October 31, 2018;
3. All documents and records that indicate where Governor Scott will travel during the period July 20, 2018 through October 31, 2018;

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d.

e.

14.
Office of Open Government for EOG stating simply that the Governor’s office is “unable to provide these records at this time as they are exempt pursuant to 119.071(2)(d) F.S.” See attached Exhibit B. EOG failed to explain how its cited exemption was applicable, especially in light of the fact that the Governor’s schedule is a public record, has been produced previously before, and is typically emailed out to the public and press on a daily basis. Additionally, the exemption asserted by EOG is wholly inapplicable. The records requested by PHC lie at the heart of Florida’ Public Records Laws.

15. While PHC believes it is abundantly clear that the records sought are public records, PHC seeks a Writ of Mandamus, Declaratory Judgment, and an in camera review of the responsive records for an order declaring the records to be public records under Chapter 119, Florida Statutes, and to compel such records under by Writ of Mandamus.

COUNT I Writ of Mandamus

16. PHC restates and re-alleges paragraphs 1 through 15 above. Each of these paragraphs incorporated herein contain factual allegations which are relevant to the relief being sought in this Count.

17. PHC seeks a Writ of Mandamus compelling EOG to produce the public records responsive to the public records request at issue.

All documents and records that indicate where Governor Scott will reside during the period July 20, 2018 through October 31, 2018; and
A list of all campaign and fundraising events Governor Scott will attend as part of his campaign for U.S. Senate during the period July 20, 2018 through October 31, 2018.

Nonetheless, on July 20, 2018, PHC received a short email from the Director of

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18. EOG has a ministerial duty to permit the inspection and examination of the public records requested by the PHC. EOG has failed to permit the inspection and examination of the records responsive to the public records request at issue.

19. EOG’s refusal to produce all records responsive to the public records request at issue violates Florida Statutes, Chapter 119.07.

20. Thus, EOG wrongfully denied access to public records.
21. EOG’s unreasonable denial of access to the responsive public records violates

Florida’s public records laws codified in Florida Statutes 119.

WHEREFORE, Petitioner, PHC, requests that this Honorable Court issue an Alternative Writ of Mandamus/Order to Show Cause commanding that the Respondent, EOG, perform the following:

a. EOG perform its ministerial duties by permitting the inspection and examination of the public records requested and for which Respondent EOG has failed to produce and for which no exemption applies;

b. EOG be ordered to show cause as to why PHC should not be granted the relief sought herein at an accelerated hearing, pursuant to Section 119.11, Florida Statutes, as to PHC request that the Court enter an Alternative Writ of Mandamus/Order to Show Cause. EOG provide at the accelerated hearing the records responsive to the request for an in camera review by the Court so that the Court may make a timely ruling on the matter as contemplated by Section 119.11, Florida Statutes.

c. EOG be ordered to show cause for the impermissible refusal to produce the records responsive to PHC’s public records request;

d. PHC receive its costs and attorneys’ fees in prosecuting this claim for

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records which were wrongfully excluded or withheld and that such records be immediately produced;

e. PHC receives such further relief as this Court deems proper.

COUNT II Declaratory Judgment

22. PHC restates and re-alleges paragraphs 1 through 15 above. Each of these paragraphs incorporated herein contain factual allegations which are relevant to the relief being sought in this Count.

23. PHC seeks a declaration that EOG violated Sections 119.01, .021, .07, Florida Statutes.

24. There is a bona fide, actual, present, and practical need for the declaratory judgment.

25. There is a present, ascertained set of facts, or a present controversy over those facts.

26. The privileges and rights of the parties are dependent on these facts and the law applicable to those facts.

27. PHC unreasonably delayed production of public records in this matter.
28. PHC is insecure as to its rights and whether EOG violated Florida’s Public

Records laws, entitling PHC to the records responsive to its public records request.

29. PHC requests that such responsive records be produced at an accelerated hearing pursuant to Section 119.11, Florida Statutes.

30. A declaratory judgment would not be mere legal advice.

NOW WHEREFORE, PHC requests that this Court enter a declaratory judgment and all supplemental relief as the Court deems proper and as allowed by law, and attorneys fees’ and

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costs pursuant to Section 119.12, Florida Statutes. DATED this 26th day of July, 2018.

Respectfully submitted,

The Law Offices of
STEVEN R. ANDREWS, P.A. 822 North Monroe Street Tallahassee, Florida 32303
T: (850) 681-6416 / F: 681-6984

/s/ Ryan J. Andrews_____

STEVEN R. ANDREWS (FBN 0263680) RYAN J. ANDREWS (FBN 0104703) [email protected]
BRIAN O. FINNERTY (FBN 0094647)

[email protected] [email protected]

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July 19, 2018

Via Email and Overnight Delivery

Office of Governor Rick Scott ([email protected]) State of Florida
The Capitol
400 S. Monroe St.

Tallahassee, FL 32399-0001

RE: Public Record Request Related to Governor Rick Scott’s Calendar and Meetings

Pursuant to Article I, Section 24 of the Florida Constitution and Chapter 119 of the Florida Statues, AHF MCO of Florida, Inc. D.B.A. PHC Florida HIV/AIDS Specialty Plan (“PHC”) requests copies of all public records showing meetings and travel plans involving Governor Rick Scott for the period July 20, 2018 through October 31, 2018. More specifically, PHC requests the following:

1. A copy of Governor Scott’s electronic calendar showing all meetings, events, and appearances involving the Governor for the period July 20, 2018 through October 31, 2018;
2. A copy of any hardcopy calendars or other documents showing all meetings, events, and appearances involving the Governor for the period July 20, 2018 through October 31, 2018;
3. All documents and records that indicate where Governor Scott will travel during the period July 20, 2018 through October 31, 2018;
4. All documents and records that indicate where Governor Scott will reside during the period July 20, 2018 through October 31, 2018; and
5. A list of all campaign and fundraising events Governor Scott will attend as part of his campaign for U.S. Senate during the period July 20, 2018 through October 31, 2018.

PHC is willing to pay fees for this request up to a maximum of $500. If you estimate that the fees will exceed this limit, please inform me before incurring such costs.

Should you deny this request, or any part of this request, please state in writing the basis for the denial, including the exact statutory citation authorizing the denial as required by § 119.07(1)(d)

Statewide Office 700 SE 3rd Ave, 4th FL, Ft. Lauderdale, FL 33316• Tel (954) 522-3132 • Fax (954) 522-3260 • www.positivehealthcare.org

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F.S. I will contact your office within one week to discuss when I may expect fulfillment of this request and payment of any statutorily prescribed fees.

Thank you,

Jeffrey Blend Counsel for PHC

Statewide Office 700 SE 3rd Ave, 4th FL, Ft. Lauderdale, FL 33316• Tel (954) 522-3132 • Fax (954) 522-3260 • www.positivehealthcare.org