STATE OF MINNESOTA DISTRICT COURT

COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT Case Type: Other Civil

UCare Minnesota, a Minnesota Non-Profit Corporation,

Case No.

Plaintiff,

MEMORANDUM IN SUPPORT OF MOTION FOR

TEMPORARY INJUNCTION

v.

Minnesota Department of Human Services; and Lucinda E. Jesson, in her capacity as Commissioner of the Minnesota Department of Human Services,

Defendants.

INTRODUCTION

UCare Minnesota ("UCare") provides healthcare coverage and services to eligible

beneficiaries of Prepaid Medical Assistance Program ("PMAP") and MinnesotaCare in

Minnesota. UCare currently contracts with the Minnesota Department of Human Services

("DHS") to offer PMAP in 62 counties and MinnesotaCare in 71 counties. With approximately

370,000 members, UCare has the largest PMAP and MinnesotaCare enrollment in Minnesota.

DHS violated statutes and longstanding equitable principles of competitive bidding

during a procurement process that culminated in DHS's recent (July 28, 2015) announcement

that, effective January 1, 2016, UCare would no longer be allowed to serve any PMAP or

MinnesotaCare enrollees in Minnesota. DHS's announcement flew in the face of the

recommendations from at least 47 county boards (and possibly as many as 55), which expressed

a desire to have UCare to provide managed healthcare services in their respective counties in

2016. DHS has indicated that the open enrollment process for 2016 will begin on or before

September 2. If DHS completely excludes UCare from the marketplace, approximately 370,000

members will be forced to change their health plan. Of those members, an estimated 40,000 are

non-English speakers, over 150,000 are ethnically or racially diverse, and more than 175,000 are

children. The public interest at stake here is significant—as counties and community

representatives have expressed their displeasure and disagreement with DHS's announcement

excluding UCare from the marketplace.

UCare requests that this Court maintain the status quo by temporarily enjoining DHS

from initiating the open enrollment process until it allows UCare to continue participating in the

marketplace. UCare presents preliminary submissions in support of its motion and asks for a

hearing as soon as feasible to present additional information that will bear on the issues.

LEGAL STANDARD

Rule 65.02 of the Minnesota Rules of Civil Procedure governs requests for temporary

injunctions. Under Rule 65.02, the court may issue temporary injunctive relief only if "by

affidavit, deposition testimony, or oral testimony in court, it appears that sufficient grounds exist

therefor." Minn. R. Civ. P. 65.02(b). Courts consider five factors when evaluating whether a

temporary injunction is appropriate and necessary:

(1) Relationships: The nature of the relationship between the parties before the

dispute;

(2) Harm: The harm an applicant may suffer if an injunction is denied, as

compared to the harm to a non-applicant if an injunction is granted;

(3) Merits: The likelihood a party will prevail on the merits;

(4) Public Policy: Public policy considerations; and

(5) Administration: The burdens on the Court if a temporary decree issues.

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Dahlberg Bros. v. Ford Motor Co., 137 N.W.2d 314, 321-22 (1965); see also Metro Sports

Facilities Comm'n v. Minnesota Twins Partnership, 638 N.W.2d 214, 220-21 (Minn. Ct. App.

2002).

UCARE SATISFIES ALL FIVE FACTORS FOR A TEMPORARY INJUNCTION

I. The nature of the relationship between the parties before the dispute demonstrates that it would be inequitable to exclude UCare from competing in the marketplace.

UCare is an independent, nonprofit health plan providing health coverage and services to

more than 510,000 members in Minnesota and western Wisconsin. (Monsrud Aff. ¶ 3.) UCare

has served Minnesotans for over 30 years. UCare was a foundational plan for State Government

Programs, dating back to 1984, when the University of Minnesota Medical School created UCare

as a demonstration project for Medical Assistance recipients in Hennepin County. (Monsrud Aff.

¶ 4.) Since then, UCare has provided more than 30 years of quality services and dedication to

members, partners, and the community throughout Minnesota, and in more recent years, Western

Wisconsin. (Monsrud Aff. ¶ 4.)

UCare has grown to become the fourth-largest non-profit health plan in Minnesota

serving Medicare, Medicaid, the disabled, low-income seniors and commercial members

throughout Minnesota and Western Wisconsin. (Monsrud Aff. ¶ 5.) At just over 370,000

members, UCare has the largest Prepaid Medical Assistance Program ("PMAP") and

MinnesotaCare enrollment in Minnesota. UCare serves approximately 45% of all who are

enrolled in PMAP and MinnesotaCare statewide across all health plans. UCare currently

contracts with DHS to offer PMAP in 62 counties and MinnesotaCare in 71 counties. (Monsrud

Aff. ¶ 5.)

UCare currently serves more people from diverse cultures and more people with

disabilities enrolled in Medical Assistance than any other health plan in Minnesota. (Monsrud

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Aff. ¶ 6.) UCare has invested significant resources and developed innovative programs to

promote health equity for all of its members, but especially members who are persons of color,

new immigrant populations and those with Limited English Proficiency. (Monsrud Aff. ¶ 6.) For

example, when its state program members experienced difficulty finding dentists in their

community, UCare partnered with the University of Minnesota School of Dentistry to create a

Mobile Dental Clinic that brings dental services directly to members in their community.

(Monsrud Aff. ¶ 6.) UCare pioneered interpreter and transportation services to better serve its

diverse membership. (Monsrud Aff. ¶ 6.) And UCare provides a range of innovative health and

wellness programs—including free car seats, fitness programs, and incentives for check-ups and

screenings. (Monsrud Aff. ¶ 6.) Other UCare initiatives directed at UCare's diverse and

immigrant populations include the following:

• Web pages in Hmong, Spanish, and Somali, including links to member materials

in these languages. (Monsrud Aff. ¶ 6a.)

• Development of messages and multi-channel communication delivery methods

(face-to-face, social media, video, et al.) tailored to the specific cultural

preferences of each audience. (Monsrud Aff. ¶ 6b.)

• UCare's Diversity and Cultural Competency Council (DCCC), responsible for a

range of activities focused on ensuring that UCare's diverse members are engaged

and informed in a culturally competent manner. (Monsrud Aff. ¶ 6c.)

• Staff and provider training and resources such as development of the Culture Care

Connection website (http://www.culturecareconnection.org). (Monsrud Aff. ¶ 6d.)

• Active participation, leadership, and/or collaboration with DHS, Minnesota

Department of Health (MDH), counties, providers, and community organizations

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throughout the state working to address health disparities and social determinants

of health. (Monsrud Aff. ¶ 6e.)

• Grants to counties, providers, and community organizations to support innovative

approaches to eliminating health disparities and creating health equity. (Monsrud

Aff. ¶ 6f.)

Additionally, UCare has a broad network of providers in targeted service areas

supporting the unique needs of diverse and immigrant communities, including transportation

providers, interpreters, and personal care assistants. (Monsrud Aff. ¶ 7.)

DHS initiated a competitive procurement process for the 2016 contracts by issuing a

Request for Proposals ("RFP") on January 26, 2015. The RFP explained that DHS was

undertaking a statewide procurement in the 87 counties in Minnesota. (RFP, Carsello Aff. Ex. 9,

p. 5.) The RFP stated that, if a county is in a Metropolitan Statistical Area, for PMAP it will

require "at least two managed care organizations (MCOs) be selected to provide health care

services in that county," and the remaining rural counties "are not required to have more than a

single MCO." (RFP, Carsello Aff. Ex. 9, p. 5.) The RFP stated that for MinnesotaCare "a

minimum of two MCOs will be selected in all 87 counties." (RFP, Carsello Aff. Ex. 9, p. 5.)

In response to the RFP issued by DHS, UCare submitted a proposal to provide healthcare

services to eligible recipients of PMAP and MinnesotaCare in 2016.

After reviewing proposals, at least 47 county boards passed resolutions recommending

that UCare be selected as an approved MCO for their respective counties. (Ditlevson Aff. ¶ 4 and

Exhibits 10-52.) DHS has been quoted as saying that the figure is 55 county resolutions of

support for UCare. (Ditlevson Aff. ¶ 3 and Ex. 9.) Counties invested significant time in

evaluating the available health plans. County boards passed resolutions in support of those plans

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they concluded best met their local needs. UCare has the support of many counties. Those

counties are familiar with UCare's work.

On July 28, 2015, DHS announced the winners of the competitive procurement process,

and that UCare would no longer serve PMAP and MinnesotaCare enrollees, effective January 1,

2016. (Monsrud Aff. ¶ 8; Worcester Aff. Ex. 2.) DHS stated that the "[c]ontracts will be awarded

on a county-by-county basis, with generally two plans options for enrollees in every Minnesota

county, and three plans in each county within the 7-county metro area." (Worcester Aff. Ex. 2.)

DHS announced the "winning MCOs" as Blue Plus, HealthPartners, Medica, PrimeWest, Itasca

Medical Care, South Country Health Alliance, and Hennepin Health. (Worcester Aff. Ex. 2.)

UCare was not listed. DHS sent a letter to UCare stating that it "selected another Responder(s) to

enter into contract negotiations to meet the State's needs for this statewide procurement."

(Worcester Aff. Ex. 1.) DHS also announced plans to move up open enrollment from October 1

to September 2 so UCare members can switch plans. (Ditlevson Aff. Exs. 3 and 8.) Thus, DHS

did not follow the recommendations of the many county boards whose resolutions favored

inclusion of UCare.

II. Absent injunctive relief, UCare will suffer irreparable harm when it loses 370,000 enrollees; but, on the other hand, DHS will not be harmed if UCare is permitted to compete in the marketplace.

If DHS disallows UCare's service for PMAP and MinnesotaCare enrollees effective

January 1, 2016, it would have significant effects on UCare's business. (Monsrud Aff. ¶ 8.)

UCare would lose approximately 370,000 members. (Monsrud Aff. ¶ 8.) Those members are

located throughout Minnesota, in 62 counties for PMAP and 71 counties for MinnesotaCare.

(Monsrud Aff. ¶ 8.) Of those members, an estimated 40,000 are non-English speakers, over

150,000 are ethnically or racially diverse, and more than 175,000 are children. (Monsrud Aff.

8.)

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Individuals and families enrolled in PMAP and MinnesotaCare comprise more than 72%

of UCare's total membership. (Monsrud Aff. ¶ 9.) If UCare is excluded from the marketplace,

UCare will lose those members and the corresponding revenue associated with their business,

approximately 54% of UCare's total annual revenue. (Monsrud Aff. ¶ 9.) Additionally, UCare's

PMAP program has historically served as a gateway to other UCare programs when, for

example, a member turns 65 and becomes eligible for other plans, including Medicare. (Monsrud

Aff. ¶ 9.) If UCare does not serve the PMAP members, they will be less likely to turn to UCare

to enroll in those other market segment plans. (Monsrud Aff. ¶ 9.)

UCare's exclusion from the PMAP and MinnesotaCare programs has already caused

reputational harm among members, providers, and other community stakeholders related to

UCare's ability to continue to function in the marketplace. (Monsrud Aff. ¶ 10.) Members in

UCare's non-PMAP and MinnesotaCare plans have begun contacting UCare to raise concerns

regarding whether UCare will continue to provide services and to question whether they should

switch health insurance plans. (Monsrud Aff. ¶ 10.)

Because of the significant reduction in membership and revenue, UCare will be forced to

eliminate hundreds of jobs. (Monsrud Aff. ¶ 11.) UCare will also be challenged to maintain its

state public programs administrative infrastructure, certain provider networks and the employee

talent needed to participate in future procurement processes, rendering its future participation in

PMAP and MinnesotaCare in perilous doubt. (Monsrud Aff. ¶ 11.)

One way UCare breaks down barriers facing non-English speaking members is by

employing staff who speak the same languages and share the same cultural background as

UCare's members, maximizing use of interpreter services, and working with providers to

strengthen their delivery of culturally competent care. (Monsrud Aff. ¶ 12.) Nearly 33% of

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UCare's Customer Service Representatives and clinical services staff are bilingual. At this time,

25% of UCare's employees are persons of color. (Monsrud Aff. ¶ 12.) This unique engagement

of diverse employees and culturally competent systems designed for Medical Assistance

populations will be lost. (Monsrud Aff. ¶ 12.)

UCare has demonstrated irreparable harm here because the denial of injunctive relief

would cause damage to its business and reputation that "would be substantial and not easily

measured." Webb Publ 'g Co. v. Fosshage, 426 N.W.2d 445, 449 (Minn. Ct. App. 1988).

The balance-of-harms analysis is unusual here because DHS will not be harmed if UCare

is permitted to compete in the marketplace. DHS's claims of cost savings are not directly related

to UCare's exclusion from marketplace. If UCare is allowed to stay in the marketplace, DHS

could achieve similar cost savings.

Furthermore, even if UCare's potential participation could impact the stated cost savings,

DHS's press conference claim of $650 million in cost savings from this procurement appears

exaggerated. (Carsello Aff. ¶¶ 13-14.) DHS overstated the $650 million savings by at least $200

million that had been unnecessarily paid out to plans in 2014, which even the press release itself

acknowledged. (Carsello Aff ¶14-15; Worcester Aff Ex. 2.) DHS has not provided UCare with

any meaningful data to enable an evaluation of the remainder of the State's claimed $450

million in savings. (Carsello All ¶ 16.) Even without such data, the State's cost savings

estimates appear to be questionable. (Carsello Aff. TT 16-17.)

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III. UCare is likely to succeed on the merits of its claims because DHS violated statutes, equitable principles of competitive procurement, and its own RFP by excluding UCare.

A. DHS violates the statute by eliminating free choice of vendor and mandating a disruptive transition for those members who have chosen UCare.

DHS is operating its procurement under Minnesota Statutes Chapter 256B. Section

256B.01 states support for free choice of vendor:

Medical assistance for needy persons whose resources are not adequate to meet the cost of such care is hereby declared to be a matter of state concern. To provide such care, a statewide program of medical assistance, with free choice of vendor, is hereby established.

Minn. Stat. § 256B.01 (emphasis added). The legislature explicitly recognized the need for

choice. DHS's procurement is the first state-wide procurement, mandated under section 256B.69,

subdivision 35(b). Prior to this procurement, DHS has been providing demonstration projects in

limited procurements. During the demonstrations for experimental counties, the legislature

allowed "suspension of choice." Minn. Stat. § 256B.69, subds. 2(d) and 4. But the legislature did

not authorize the suspension of choice beyond the demonstration projects, which will expire at

the end of 2015, and thus DHS exceeded its authority in limiting choice for the 2016

procurement.

DHS acknowledges that its 2016 procurement decision "may mean transitions for many

enrollees." (Ditlevson Aff. Ex. 3.) This fails to account for statutorily endorsed free choice of

vendor, and wildly understates the nature of the challenge. Never before in Minnesota have more

than 77,000 enrollees had to choose a new plan in an enrollment period. This time around, the

number is approximately 475,000, with 370,000 of those driven away from UCare by DHS. DHS

has not taken reliable steps to assure that this massive shift can be accomplished without

imposing huge burdens on already strapped counties. (See Ditlevson Aff. Ex. 8.) Moreover, DHS

fails to provide any compelling reason that the transitions are necessary. DHS could easily have

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added the new MCOs without displacing the current major health plan (UCare). DHS could have

achieved the same or virtually the same touted savings with UCare in the mix. If UCare

remained as a choice, the number of compelled transitions could be cut to less than 100,000. Of

course, with new and additional plans in play, the target populations may choose to make a

transition for their own individual and market reasons, but that would be very different than the

compelled disruption that DHS has chosen to impose for undisclosed reasons.

B. The RFP lacks any standards for DHS to follow in making the most important decision of where to draw the line that determines which responders DHS will decline to negotiate with, thus allowing certain responders to have access to the market through negotiation while barring market access to the rest.

The DHS procurement involved two very different processes. The first process involved

scoring. The second process involved the most important decision in this procurement process—

where DHS draws the line that determines which responders DHS will refuse to negotiate or

contract with. The practical effect of that decision was to eliminate or reduce competition from

all MCOs that are precluded from negotiating. The line-drawing process appears to have

happened shortly before the Governor and DHS Commissioner held their press conference on

July 28, 2015. The line-drawing process is the primary focus of this motion.

The first process involved criteria and required procedures, some of which were spelled

out in advance and made public. Questions exist about some aspects of the first process, but in

the absence of data that DHS has keep secret, there is not much that can yet be said about those

questions. But a key point for this motion is that the line-drawing process involved no criteria, no

standards, and no required processes. What little DHS has said in explaining why the cutoff line

was drawn where it was drawn simply begs the question.

The first process was a competitive one aimed toward a market with multiple vendors,

and presumably some responders scored higher than other responders. The second process has

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not been a competitive one—DHS simply identified one set of responders as the "winning

MCOs" in a highly public press conference and press release.

The standard of review for best-value-bidding processes is whether officials acted in an

arbitrary, capricious, or unreasonable manner. Rochester City Lines, Co. v. City of Rochester,

No. A13-1477, slip op. at 11 (Minn. Aug. 19, 2015) (citing Griswold v. Ramsey Cty., 242 Minn.

529, 65 N.W.2d 647 (1954)). The Minnesota Supreme Court recently stated that the proper legal

standard "requires courts to examine the bidding procedures to ensure that they provide a fair

process and incorporate sufficient controls to safeguard against abuses." Rochester City Lines,

slip op. at 10 (Minn. Aug. 19, 2015) (citing Griswold, 65 N.W.2d at 652). To comply with the

Minnesota Supreme Court's directives regarding public contracting, plans and specifications

must be "definite . . . with respect to the subject matter of the contract," and "be so framed as to

permit free and open bidding by all interested parties." Collier v. City of St. Paul, 223 Minn. 376,

377-78, 26 N.W.2d 835, 841 (Minn. 1947).

Only in retrospect does a line appear for the second process: DHS decided to include only

two MCOs in greater Minnesota counties and only three in metro-area counties. DHS's decision

to drop UCare below the cutoff line was arbitrary, capricious, and unreasonable because the RFP

lacked any standards for DHS to follow in cutting off qualified responders that submitted

responsive proposals.

The RFP says much about how points will be awarded, but does not specify how points,

once awarded, will bear on DHS's decision of where to draw the line. With respect to this

important decision, the RFP simply states that: "Only the proposals found to be responsive under

Phases I and II will be considered in Phase III." (RFP, Carsello Aff. Ex. 9, p. 25.) This sentence

is the closest the RFP comes to providing a standard for DHS to have applied in choosing where

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to draw the line.' The Minnesota Supreme Court has directed that "[s]pecifications must be

sufficiently definite and precise to afford a basis for bids and they must be free from restrictions

the effect of which would be to stifle competition." Gale v. City of St. Paul, 255 Minn. 108, 113-

14, 96 N.W.2d 377, 381 (1959). In Gale, the Court held that "there was such ambiguity and

uncertainty in the specifications as to constitute a violation of the requirements of competitive

bidding in that the dual interpretation which the contract-making officials could place on the bids

could provide an opportunity for favoritism and possibly a greater cost . . . ." Gale, 96 N.W.2d at

381.

Because the sentence referring to "responsive" proposals is the RFP's only potential

source of a standard regarding which responders DHS can refuse to consider in Phase III, that

decision must turn on whether a proposal was found to be nonresponsive. Otherwise, the line-

drawing decision was subject was no standard at all, which would render the procurement invalid

under Gale and Griswold. Responsiveness is the principle that only bids and proposals that

comply with all material requirements stated in the solicitation may be considered for award. See

Carl Bolander & Sons Co. v. City of Minneapolis, 451 N.W.2d 204, 206-07 (Minn. 1990);

Nielsen v. City of St. Paul, 88 N. W.2 d 853, 857 (Minn 1958) ("Bids for municipal contracts

must substantially comply with all requirements relative thereto, as contained in statutes, charter

provisions, ordinances, and advertisements."). Responsiveness has nothing to do with how the

1 While the RFP also states that "nonselection of any proposals will mean that either another proposal(s) was determined to be more advantageous to the DHS or that the DHS exercised the right to reject any or all proposals," (RFP, Carsello Aff. Ex. 9, p. 22), that disjunctive description of what an action "will mean" does not constitute any standard at all, let alone a standard for the decision of which responders DHS can refuse to negotiate with. Even if the decision means that another proposal was determined to be more advantageous, this description provided no guidance for DHS to follow in deciding where to draw the cutoff line.

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winning bid or proposal is chosen; it is solely concerned with whether a bid or proposal may

even be considered before the bid or proposal is scored.

DHS did not "find" UCare's proposal "to be [non]responsive." The record shows that

DHS has treated UCare's proposal as responsive. DHS's letter to UCare, dated July 27, 2015,

stated that "until the State successfully completes negotiations with the selected Responder(s), all

submitted proposals remain eligible for selection by the State." (Worcester Aff. Ex. 1.) Because

DHS indicated that UCare's proposal remained eligible, UCare's proposal must have been

responsive. Therefore, UCare satisfied the only conceivable legal standard for reaching the final

stage of the process.

This Court should expect that such an extreme decision to completely and abruptly

exclude UCare—disrupting 370,000 UCare members and the future viability of a company

employing over 900 people—would have been compelled by some clear failure on the part of

UCare to meet specific criteria. Not so. And DHS's own July 27th letter indicates that DHS

could have selected, and still could select, UCare. (Worcester Aff. Ex. 1.)

The practical effect of this line-drawing process was to eliminate or reduce competition

by allowing certain responders to have access to the market, while barring market access to the

rest. A press conference and press release, before the conclusion of the procurement, is not an

event that is referenced in any respect in the statute or in the RFP. That event actually reduced

DHS leverage in any negotiations with the announced "winning MCOs."

To conceal the line-drawing process from meaningful and timely public scrutiny, DHS

has treated the second process as if it was simply a continuation of the first process. DHS has

certainly not remained silent, but has used a press conference, press release, and interviews to

issue celebratory messages about millions in supposed savings. But DHS has stymied public

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scrutiny of the veracity of those messages and of the rest of the line-drawing process, by

asserting that such information is nonpublic until contracts are signed.

Calling the procurement "competitive," and stating that UCare did not stack up against

the competition, does not begin to justify the choices made in the line-drawing process. To the

contrary, the line-drawing process is fundamentally anticompetitive, both in the short term and in

the long term. It is anticompetitive in the short term because its effect is to deprive UCare and

other companies from the same opportunity to negotiate with DHS that is possessed by the

"winning MCOs." It is anticompetitive in the long term because the Economic Darwinism

embodied in its policy of allowing no more than two plans to compete in most counties, for

indeterminate periods of years, will discourage market participation and reduce leverage in rate

negotiations before any next procurement.

Minnesota's body of public contracting law seeks to "promote honesty, economy, and

aboveboard dealing" and to ensure that contract awards by the State and others are free from

"such abuses as fraud, favoritism, extravagance, and improvidence." Collier, 26 N.W.2d at 841;

see also Rochester City Lines, slip op. at 10 ("The essential safeguard of competitive bidding is,

as we stated in Griswold, to 'limit the discretion of contract-making officials' to prevent 'such

abuses as fraud, favoritism, improvidence and extravagance."). With respect to the second

process in which DHS drew a line between responders and cutoff UCare, there was an absence

of "sufficient controls to safeguard against abuses." Rochester City Lines, slip op. at 10 (Minn.

Aug. 19, 2015) (citing Griswold, 65 N.W.2d at 652). Reducing competition by excluding from

the market all responsive responders but an arbitrarily limited few cannot be justified.

Eliminating qualified competitors at this point necessarily reduces long-term competition and

choice. Doing this in the absence of any standard is arbitrary, capricious and unreasonable.

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C. DHS deprived county boards of their statutory right to "mutually select health plans," thereby prejudicing UCare.

DHS failed to follow the statutory directive to allow county boards to "mutually select"

the health plans. The Minnesota Legislature went to great lengths to demonstrate that the

privilege of selecting health plans was given jointly to county boards of commissioners and the

DHS Commissioner. Subdivision 3a of Minnesota Statutes section 256B.69 provides that "[t]he

county board or a single entity representing a group of county boards and the commissioner shall

mutually select health plans for participation at the time of initial implementation of the prepaid

medical assistance program in that county or group of counties and at the time of contract

renewal." Minn. Stat. § 256B.69, subd. 3a(a). As demonstrated by the terms of contracts

currently in effect between the Commissioner and health plans, the statewide procurement

decisions are taking place at "the time of contract renewal." When adding the statewide

procurement requirement in 2014, the Legislature again demonstrated the importance of

counties. Subdivision 35 of Minnesota Statutes section 256B.69 also requires that DHS shall

"seek each individual county's input," and seek county input regarding a specified set of topics,

including the respondent's ability to "serve special populations, including enrollees with

language and cultural needs." Minn. Stat. § 256B.69, subd. 35(b) (enacted as 2104 Sess. Laws

Ch. 291 Art. 9, § 3). The RFP states that county boards are included pursuant to Minnesota

Statutes, section 256B.69, subdivision 3a. (RFP, Carsello Aff. Ex. 9, p. 6.)

But the process DHS actually used fell far short of any "mutual" decision-making

process. Instead, DHS shared with counties only one-fifth of the influence over scoring, as

counties were able only to participate in a portion of evaluating the responder's proposal. DHS's

response to questions about the RFP process, which asked whether DHS will "work with each

county to choose MCO(s)," and what role the county board recommendation of a RFP responder

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would play in the selection of a responder to serve the county, is telling: "Each County Board

will submit recommendations on responder selection but as explained to counties, while the

board recommendation is important, it is only one of the factors considered in determining the

selection of successful proposals." (Carsello Aff. Ex. 11, ["final" (2-25-2015) responses to

questions 121 and 127].) The second part of DHS's response reflects that the county's scoring

was confined to Appendix N (the responders' responses to county-specific questions developed

by those counties, RFP, Carsello Aff. Ex. 9, p. 231) and Appendix R-B (network provider

information by county), and could affect only 20 percent of the points. (Carsello Aff. Ex. 11 at

question 121; see also Ditlevson Aff. Ex. 2 at 3-4.) Put another way, the counties were

completely shut out of the scoring regarding important categories such as the "Quality of Care

and Services Evaluation" (Appendix P), "Health Care Reform Initiatives" (Appendix Q), and of

course the price bid. Notwithstanding DHS's assurance that a county board's recommendation

"is important," the RFP failed to assign any points to that factor, and did not include a county-

board recommendation as one of its scoring criteria. Collectively, these steps fell short of

delivering on the statutory guarantee that county boards would "mutually select" the plans.

Counties do not want to see DHS eliminate UCare as an option. For example, Olmsted

County stated that "the elimination of UCare is extremely troubling since they are the

predominant provider for our higher need individuals, especially children and families."

(Ditlevson Aff. Ex. 54 at 1.) Olmsted County explained that "UCare's willingness to adapt to the

needs of various immigrant populations has been an asset to our community and helped these

families make a smoother transition into our county." (Ditlevson Aff. Ex. 54 at 2.) Olmsted

County believes that DHS's decision "will disproportionately impact this group of people and

they already have barriers in multiple systems to overcome." (Ditlevson Aff. Ex. 54 at 2.)

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Any doubt about whether UCare was prejudiced by DHS's statutory violations is

apparent from one fact: at least 47 county boards recommended the selection of UCare to

provide managed healthcare services in their County for 2016. (Ditlevson Aff. ¶ 4 and Exhibits

10-52)2 Yet DHS completely shut out UCare from the opportunity to negotiate over the next

contracts. Many counties have expressed support for UCare and do not want to see UCare

excluded from the marketplace. (Berg Aff. 7 5-6, Exs. 1-11.) By announcing the "winners" in

advance of sending, or on the same day DHS sent, notification letters to counties, DHS ignored

its statutory obligations to the counties. When DHS announced it was excluding UCare, DHS

failed to comply with the statute, disregarding the large number of counties that recommended

retaining UCare as an option. This exclusion of UCare is to the detriment of special populations

that the statute specifically contemplates protecting. Minn. Stat. § 256B.69, subd. 35(b)(3)

("serve special populations").

D. DHS's design of the RFP process effectively caused county boards to relinquish their statutory role to unelected administrative personnel.

The RFP process that DHS designed rendered the county boards—the entities that

subdivision 3a of Minnesota Statutes section 256B.69 empowers to make decisions mutually

with the DHS Commissioner—effectively powerless. DHS set up a highly-confidential process

for reviewing and scoring the proposals. For example, DHS exacted confidentiality agreements

from county evaluators as a condition to their participation in the MCO selection process.

(Ditlevson Aff. Ex. 1 at 1; Ditlevson Aff. Ex. 2 at 2.) In describing the "mutual" process for

making recommendations and decisions regarding the selection of health plans, the statute

almost uniformly describes the prerogatives of county boards, rather than the prerogatives of

2 UCare has not yet been able to confirm the recommendations of all counties. DHS has stated that 55 of Minnesota's 87 counties recommended UCare. See Ditlevson Aff. ¶ 3 and Ex. 9.

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counties. Minn. Stat. § 256B.69, subd 3a. County boards can act collectively only in meetings,

and those meetings are subject to the Open Meeting Law, Minn. Stat. ch. 13D. Under that law,

there is a very limited set of circumstances in which a county board may close a meeting to

discuss not public data—but none are present in this setting. See Minn. Stat. § 13D.05, subd. 1

("Except as provided in this chapter, meetings may not be closed to discuss data that are not

public data") and subd. 3 (listing six circumstances in which a public body may close a meeting,

none of which would apply here).

The Open Meetings Law and Data Practices Act each provide that "not public data" may

be discussed in a public meeting without violating either Act. See Minn. Stat. § 13.03, subd. 11

and 13D.05, subd. 1 (b). Yet DHS required vows of confidentiality from evaluators. As a result,

county boards could only conduct their affairs in public meetings that could not lawfully be

closed under these circumstances. Minutes of the Kandiyohi County Human Services Committee

demonstrate how that body was effectively prevented from deliberating regarding its choice of

providers. A staff member submitted a proposed resolution (that recommended UCare and

Blue Plus), but she explained that she was "unable to provide any details of the four" proposals,

and when asked by a county board member "why she made the proposed recommendation," she

responded that "she is not able to talk directly about the proposals. . . ." (Ditlevson Aff. Ex. 27 at

3.)

DHS's design of this process effectively caused county boards to relinquish their

statutory role to unelected administrative staff who, acting individually rather than in meetings of

the public body or a committee thereof, are not subject to the Open Meetings Law. See Moberg

v. Independent School District No. 281, 336 N.W.2d 510 (Minn. 1983). To comply with the

confidentiality agreements that DHS required, those county staff effectively operated in secret,

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which further interfered with the county boards' ability to participate in the decision to select

providers "mutually" with the DHS Commissioner. In short, by designing and operating a

procurement that effectively relegated county boards to the sidelines, under a RFP that assigned

weight to many different things except county board recommendations regarding the choice of

plans, DHS violated Minnesota Statutes section 256B.69, subdivision 3a. As a result, the

procurement was contrary to law, and thus arbitrary, capricious, and unreasonable. Griswold, 65

N.W.2d at 651-52.

E. DHS improperly published UCare's confidential data in a way that gave competitors bidding advantage.

DHS created an anti-competitive bidding environment that disproportionately and

negatively impacted UCare in a number of counties where UCare is the only health plan, or

where UCare has the majority of members, because DHS provided UCare's actual county-

specific health care costs to competitors. UCare, prior to submission of the bid through DHS

formal RFP process, argued that DHS should use an alternative methodology because of this

concern, i.e., presentation to all bidders of regional instead of county-specific costs that would

expose UCare. Despite UCare's argument for a more competitive method, DHS followed its

planned approach. DHS made UCare-specific costs readily available to competitors, giving other

health plans an unfair advantage to submit low-cost bids developed with UCare's cost structure

in mind. DHS's failure to accept UCare's alternative methodology placed UCare at a competitive

disadvantage.

As part of the RFP process, DHS issued a cost data book to be used by MCOs in the

development of their financial or price bids. The book contained 2014 claims data from existing

plans reported on a county-by-county basis. Before publishing the data book, DHS informed the

plans that the book would include data by product, service level, and county based on actual data

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from contract-year 2014. But for contract-year 2014, UCare was the only plan in 15 of the 87

counties. As a result, the only cost data in the data book for those counties was not aggregated

data from multiple plans, but instead was solely UCare's data. (Carsello Aff. ¶ 4.)

UCare immediately raised concerns after learning of the proposed contents of the cost

data book. In particular, UCare objected to the potential "adverse competitive impact on UCare

resulting from how DHS intends to present cost data in the Data Book for the PMAP-

MinnesotaCare statewide RFP Price Bid." (Carsello Aff. ¶ 5 and Ex. 2.) UCare explained that

circulating data on a county-by-county basis would reveal confidential UCare competitive cost

data for 2014. UCare also objected that disclosure of UCare's provider payment data as

contemplated by DHS would violate Minnesota Statutes section 256B.69, subdivision 9c, which

prohibits the release of nonpublic plan data. (Carsello Aff. ¶ 6 and Ex. 2.)

DHS responded by insisting that the data book would not provide MCO or provider-

specific reimbursement or payment data. (Carsello Aff. ¶ 8 and Ex. 3, answer to question 105.)

But DHS's response did not address the data from counties where UCare was the only current

provider. (Carsello Aff. ¶ 8 and Ex. 3, answer to question 105.) Over UCare's objections, on

April 30, 2015, DHS released its cost data book with UCare cost information available for its

competitors to see. Claims data reflected exactly the type of data that had caused UCare's initial

concern. (Carsello Aff. ¶ 11 and Ex. 5.)

By publishing county-specific data where UCare was the only plan, DHS not only

revealed UCare's confidential information, but also potentially gave other plans a competitive

advantage. Any of UCare's competitors could use the published cost information to reverse

engineer UCare's costs by simply applying its own data regarding the county population.

Competitors knew UCare's starting costs, for example, in each of the counties where UCare was

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the only plan available. They could then forecast UCare's costs for the next two years and

identify the rate level that they had to beat in order to bid below UCare. (Carsello Aff. ¶ 12.)

Additionally, competitors could use UCare's cost data to determine UCare's nonpublic provider

payment arrangements with key providers in the county. (Carsello Aff. ¶ 12 and Ex. 2.) DHS's

scoring methodology changes for this RFP compared to prior procurements exacerbated this data

book issue to create a more catastrophic scoring result when competitors could anticipate

UCare's bid. (Carsello Aff. ri 12, 18-24.)

DHS's potential disclosure of UCare's provider payment data violated Minnesota

Statutes section 256B.69, subdivision 9c, which prohibits the release of nonpublic plan data.

UCare's provider payment rates and arrangements are trade secrets. See Minn. Stat. §

13.37, subd. 1(b). Here, the information that DHS included in the data book was a compilation

originally supplied by UCare, including UCare's provider payment rates. UCare treats provider

payment arrangements as trade secrets and goes through great lengths to maintain their secrecy

by, for example, having in place computer security requirements to access the data and by not

publishing the data or making it available outside of UCare and its providers. (Carsello Aff.

11.) Other plans could use UCare's provider payment rates to gain economic value, as they may

have done in this instance by being able to undercut UCare's rates or, more generally, have a

competitive edge in the bid process and in the health care marketplace. (Carsello Aff. ¶ 12 and

Ex. 2.) DHS was prohibited from revealing the provider payment rates, which are nonpublic

pursuant to the Minnesota Government Data Practices Act. See Minn. Stat. § 13.37, subd. 1(c)

(defining trade secret information as nonpublic and private data); Minn. Stat. section 256B.69,

subd. 9c(a) (prohibiting disclosure of nonpublic information).

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F. Destruction of documents related to DHS's procurement process violates Minnesota statutes.

DHS violated Minnesota statutes by directing counties to destroy documents related to

the competitive procurement process. All data generated through a public procurement process is

ultimately considered public data, aside from information that fits the narrow legal definition of

trade-secret information. See Minn. Stat. § 13.591 subds. 3 and 4. That aspect of Minnesota law

is central to the ability of courts to perform their role in adjudicating disputes arising from the

procurement process, and to the transparency of processes to ordinary citizens. Even if proposals,

and evaluative data, are temporarily considered "not public data" until the contracts have been

signed, Id., subd. 3(b) and subd. 4, the short-term, temporary nature of that status demonstrates

that the Legislature recognized the importance of allowing the public to see that information as

soon as the procurement is completed.

In this setting, DHS directed counties to destroy documents generated in the procurement

process. In response to a Data Practices Act request, Anoka County's response stated:

Prior to any contact with the proposals, each Anoka County employee was required to sign a confidentiality agreement with DHS. Further, Anoka County was required to destroy all documents reviewed, generated or utilized in the ranking process after forwarding the required scoring documents to DHS DHS currently has all of the documents completed by Anoka County that were submitted to DHS. All other documents were destroyed.

(Ditlevson Aff. Ex. 1 (Message of July 29, 2015 from Nancy Sommer to Mark Traynor).)

Similarly, Steele County responded to a Data Practices Act request by stating that "[t]he

instructions from DHS were to shred any paper documents, notes, etc. related to the process,

which was done." (Ditlevson Aff. Ex. 5.) DHS itself stated that "counties were required, upon

completion of their evaluation, to delete, and attest that they deleted, all of the information

provided to them for their review." (Ditlevson Aff. Ex. 2 (Email sent July 29, 2015 at 5:32 p.m.

from DHS Procurement Staff).)

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As the responses of Anoka County and Steele County reflect, DHS's document-

destruction directive was construed not simply as a directive to destroy a county's own copies of

proposals provided by DHS to counties (and presumably held in duplicate form by DHS). It

seems to have been construed to extend to other requested documents, such as the instructions

that DHS gave to evaluators, evaluators' notes and other materials reflecting how they arrived at

their calculations, and other information that is critical to understanding whether the actual

evaluation process was fully faithful to the RFP and to the governing statutes. The additional step

taken by DHS following its announcement of the "winners"—to remind counties of the directive

to destroy documents in a way that clearly implied that, aside from board recommendations and

resolutions conveyed at public board meetings, responsive documents should no longer exist—

implicitly encouraged destruction of procurement-related data that had not already taken place.

Any directive by DHS to destroy documents related to a pending procurement—held by

DHS itself, the participating counties, or its consultants or other agents—plainly violates

Minnesota law. Agencies and public bodies cannot unilaterally direct the destruction of

documents containing public data. First, Minnesota Statutes section 15.17, subdivision 1,

requires all officers and agencies to make and keep all records necessary for a full and accurate

knowledge of their official activities. In addition, a separate statute governs the destruction of

public records, and forbids the disposal of public records except in the manner prescribed by that

chapter. See Minn. Stat. §§ 138.163, 138.17. "Government records shall not be destroyed except

by the authority of the records disposition panel," Minn. Stat. § 138.225, a tribunal defined as

including the attorney general, legislative or state auditor, and director of the Minnesota

Historical Society. Minn. Stat. § 138.17, subd. 1. Government records may be destroyed only

through full compliance with a document retention plan that the State's records disposition panel

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unanimously approved. Id. at subd. 7. DHS promulgated a "County Human Services Records

Retention Schedule," but the document-destruction directive falls entirely outside the scope of

that schedule. (Ditlevson Aff. Ex. 4 (DHS Bulletin, "County Human Services General Records

Retention Schedule, August 18, 2014).) Therefore, even if DHS had obtained the records

disposition panel's approval of that retention schedule, that does not begin to authorize the

document-destruction directive.

DHS's document-destruction directive included materials that plainly fall within the

scope of the statutory definition of "governmental records." Minn. Stat. § 138.17, subd. (b)(1),

(4). That would be particularly true of documents "generated . . . in the ranking process," which

the counties destroyed in response to DHS's directives. (See Ditlevson Aff. 112 and Exs. 1, 2 and

5.) Even if some of the destroyed materials were entirely duplicative of materials retained by

DHS for later production, they were not distributed by DHS to counties "only for convenience of

reference," and therefore did not lose their character as "records."

Moreover, when DHS's document-destruction directive is viewed in combination with

the State's extraordinary step of holding a press conference to announce "winners," and selective

disclosures of information allegedly related to UCare's exclusion from that list, it demonstrates

that the path DHS actually followed became politicized, with transparency prevented. One is left

with the strong impression that DHS must be worried about sunlight on its procedures.

G. DHS should not be allowed to rationalize or defend its exclusion of UCare on undisclosed and arbitrary reasons.

For a regularly conducted procurement, a state agency would preserve the status quo until

it executes its contract or contracts. Information relating to its reasoning would all be preserved,

and then disclosed once it becomes public by law. Disappointed responders could then take

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timely and meaningful action to present their claims for judicial review, while an opportunity

still remained to cure the defects.

But DHS's document-destruction directives and press conference announcing "winners"

are not part of any regularly-conducted procurement. They reflect the displacement of a

supposedly objective and non-political selection process by a process in which scrutiny by the

public is eluded. DHS has not explained its abrupt decision to imperil UCare by excluding it

from the 2016 procurement. DHS appears to be so insecure about the defensibility of its decision

that DHS plans to proceed to contract with the designated "winners" and initiate open enrollment

before providing any specifics to UCare. This, together with the instructions that counties should

destroy data gives great reason to wonder about the validity of DHS's arbitrary expulsion of

UCare. Even though UCare presented a responsive proposal, DHS cast UCare aside as if it is

merely undeserving chaff. If the Court entertains any argument by DHS that UCare's proposal

should be given short shrift for one reason or another, then UCare should be given a proper

opportunity to understand and respond to any such reasons.

Moreover, UCare has requested scoring information about UCare's proposal. DHS has

refused to provide this information to UCare, although DHS has made some public comments

about UCare's scores. (See Worcester Aff. Ex. 2; Ditlevson Aff. Ex. 9; Frisell Aff. Exs. 1-3.)

UCare believes that there must be some mistake or failure to take into account the value and

benefits of UCare's proposal. UCare reserves the right and opportunity to present additional

claims or additional evidence depending upon the disclosures that DHS should be ordered to

make.

IV. Public policy weighs in favor of the injunctive relief that UCare seeks.

In authorizing the current DHS procurement, Minnesota Statutes section 256B.69,

subdivision 35(b)(3), expresses a public policy in favor of MCOs that serve "special populations,

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including enrollees with language and cultural needs." Minn. Stat. § 256B.69, subd. 35(b)(3).

UCare has distinguished itself by focusing on the needs of diverse, immigrant populations, and

has been recognized nationally and locally as a model for effective delivery of care to state

public program populations. (Monsrud Aff. ¶ 13.) To the detriment of the public interest, DHS's

decision will have significant unintended consequences in the community. (Monsrud Aff. ¶ 13.)

As Paul Fleissner, Director, Olmsted County Community Services, stated in an email to

Commissioner Jessen, "In addition to limiting choice this decision creates more chaos for people

living in poverty." (Monsrud Aff. ¶ 13; Monsrud Aff. Ex. 1.) The fact that a large majority of

county boards recommended the inclusion of UCare in the MCO market demonstrates their local

judgment that public policy supports the relief that UCare seeks. (See Ditlevson Aff. ¶ 4 and Exs.

10-52.)

UCare's exclusion from the marketplace means that more than 370,000 current UCare

members will be required to switch plans in 2016. (Monsrud Aff. ¶ 14.) In some counties, all

PMAP and MinnesotaCare members will be required to enroll in new plans. (Monsrud Aff. ¶

14.) For example, UCare is the sole plan for PMAP and MNCare in 14 counties, representing

27,700 PMAP and 5,100 MinnesotaCare members. (Monsrud Aff. ¶ 14.) All of those members

will have to enroll, or will be automatically enrolled, in different plans. (Monsrud Aff. ¶ 14.) In

St. Louis County and Stearns County, all current PMAP and MinnesotaCare members will

transition to other plans (St. Louis County: 14,300 from UCare and 14,800 froni another plan;

Stearns County: 14,800 from UCare, 5,100 from another plan). (Monsrud Aff. ¶ 14.) In Olmsted

County, over 80% of current PMAP and MinnesotaCare members-16,800—will be required to

transition to new plans. (Monsrud Aff. ¶ 14.)

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Requiring hundreds of thousands of members to transition to new plans will be disruptive

for counties and for the members themselves. (Monsrud Aff. ¶ 15; Ditlevson Aff. Ex. 8.) The

specific plan for how DHS will handle enrollment for the 2016 RFP is not currently known, but

UCare members transitioning to other plans are expected to go through the county financial

workers during the open enrollment period. (Monsrud Aff. ¶ 15.) DHS's managed care workers

and county caseworkers, particularly those in counties where all members must transition, will

likely have to address the needs of the transitioned members. (Monsrud Aff. ¶ 15.) For example,

in the past, when members have needed to transition to new plans, DHS has encouraged them to

talk with their county financial workers to address questions regarding their new care plan and its

primary care network. (Monsrud Aff. ¶ 15.) The sheer volume of potential questions will likely

overwhelm county workers and will make it difficult to address concerns in a timely fashion.

(Monsrud Aff. ¶ 15.) County financial workers will also likely be responsible for making plan

enrollment changes in the DHS system. (Monsrud Aff. ¶ 15.) That alone will take significant

time and resources for already-stretched county workers. (Monsrud Aff. ¶ 15.)

Members may also face negative consequences related to being required to transition.

Some members may not receive DHS's communications or, as non-English speakers, may not

understand the information in them. (Monsrud Aff. ¶ 16.) While DHS has asserted that those

members will automatically be enrolled in a default plan, the members may still face challenges

associated with that new enrollment. (Monsrud Aff. ¶ 16.) For example, if a member is

transitioned to a new plan without his knowledge, he may not present the appropriate plan

identification card for a medical visit or when he goes to a pharmacy to fill a prescription.

(Monsrud Aff. ¶ 16.) Additionally, a member may request services from a provider that is no

longer covered under his new plan. (Monsrud Aff. ¶ 16.) In particular, the non-UCare plans have

27

significantly fewer interpreters, transportation providers, and personal care assistants in-network

than UCare. (Monsrud Aff. ¶ 16.) It may be difficult for members to find appropriate substitute

providers in their new plans. (Monsrud Aff. ¶ 16.) In some cases, providers are contracted only

with UCare to support state public program members and would suffer significant financial

harm. (Monsrud Aff. ¶ 16.)

Community members have expressed appreciation for UCare and concern about its

exclusion from the marketplace. (Worcester Aff. Exs. 3-31; see also the affidavits of Pam

Costain, Chris Johnson, M.D., Gayle L. Kelly, and Joyce Onyekaba, M.D.) UCare views

working with society's most vulnerable populations, including the poor, elderly or disabled, and

refugees or immigrants, as its mission, and serves more people from diverse cultures than any

other Minnesota health plan. (Worcester Aff. ¶ 5.) UCare has invested substantial time and

resources in hiring, training, and developing minority employees to conduct community outreach

and improve patient satisfaction, ultimately improving the quality of care for minorities in

Minnesota. (Worcester Aff. ¶ 6.) Not all health plans are interchangeable in providing the

support and collaboration necessary to respond to the needs of patients in nontraditional care

settings. (Johnson Aff. ¶ 4; Worcester Aff. ¶ 11.) UCare has extensive experience in providing

reliable, high-quality care to state health plan members and has the relationships in place with

providers and patients to ensure continuity of care. (Johnson Aff. ¶ 4; Worcester Aff. ¶ 11.)

UCare's elimination from the marketplace undercuts the free choice encouraged by the

Legislature and removes a demonstrated plan with a history of success serving diverse,

immigrant, and non-English language speaking populations. (Monsrud Aff. ¶ 17.) As Paul

Fleissner, Director, Olmsted County Community Services, stated: "It would be much more

prudent to add a plan than eliminate a valued partner who has demonstrated success working

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with people with the most barriers including cultural, language and deep poverty." (Monsrud

Aff. ¶ 17; Monsrud Aff. Ex. 1.)

Market competition is in the public interest. UCare does not fear market competition.

That is a key goal in the authorizing legislation. UCare objects to its arbitrary exclusion from the

market by bureaucratic fiat. DHS's decision to remove UCare from the available choices was not

based on marketplace rejection. In Minnesota counties in which UCare has competitors under the

current contract, UCare's market share is 43%. (Ditlevson Aff. Ex. 53.) And in many counties—

such as Ramsey (54%), Washington (57%), Scott (61%), Anoka (63%), and Olmsted (81%)—

UCare is the most popular choice. (Ditlevson Aff. Ex. 53.)

V. Supervising implementation of UCare's requested injunctive relief will not create administrative burdens on this Court.

This is not a situation where the Court would be required to continuously supervise the

parties. Rather, UCare is simply asking the Court to maintain the status quo. Metro. Sports

Facilities Comm'n v. Minnesota Twins P 'ship, 638 N.W.2d 214, 229 (Minn. Ct. App. 2002)

(maintaining status quo of long-standing relationship would not impose significant

administrative burdens). Given the need for the commencement of an open enrollment process to

begin in advance of January 1, 2016, the period of any injunction is likely to be relatively short.

If DHS deviates from this Court's order for injunctive relief, UCare can bring the issue to the

Court's attention. See Softchoice, Inc. v. Schmidt, 763 N.W.2d 660, 669 (Minn. Ct. App. 2009)

(upholding determination that administrative burden involved in supervising temporary

injunction would be minimal because movant offered to supervise any injunctive relief granted).

UCare's requested injunctive relief will not create administrative burdens on this Court.

Finally, this Court has discretion to find that appropriate security can be provided by a

nominal injunction bond or by no bond at all. See Herr & Haydock, Minnesota Practice § 65.19;

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Wright & Miller, Fed. Practice and Procedure § 2954 (interpreting similar federal rule). If any

bond is required in this case, only a nominal amount should be necessary because DHS will

suffer no harm if UCare's requested relief is granted and the status quo is maintained.

CONCLUSION

UCare requests that this Court grant its motion for a temporary injunction. UCare asks

this Court to issue an order requiring that: (1) DHS shall not destroy any documents related to

the competitive procurement process; (2) DHS shall countermand any instructions given to

counties to destroy documents related to the competitive procurement process; (3) DHS shall

provide UCare documents regarding the procurement process to the extent permitted by law,

including UCare's scores; (4) DHS shall suspend all managed care enrollment activities for

PMAP and MinnesotaCare for 2016, including the distribution of any materials to beneficiaries

identifying health plan choices for open enrollment, until further order by this Court; and

(5) DHS shall provide UCare the opportunity to negotiate with and enter into a contract with

DHS, which will allow UCare to be offered as a choice for PMAP and MinnesotaCare in 2016 in

the counties that recommended UCare.

Dated: August, 2015 GREENE ESPEL PLLP

/2

tspel, Reg. 4lo. 27595 John M. Baker, Reg. No. 174403 Monte A. Mills, Reg. No. 030458X 222 S. Ninth Street, Suite 2200 Minneapolis, MN 55402 (612) 373-0830

Attorneys for Plaintiff UCare

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